CRIMINAL ISSUES IN IMMIGRATION LAW

Table of Contents

CRIMINAL ISSUES IN IMMIGRATION LAW... i

Table of Contents. i

I.            JUDICIAL REVIEW... 1

A.          Judicial Review Scheme Before Enactment of the REAL ID Act of 2005  1

B.          The Current Judicial Review Scheme under the REAL ID Act of 2005. 1

1.           Expanded Jurisdiction on Direct Review.. 1

2.           Applicability to Former Transitional Rules Cases. 1

3.           Contraction of Habeas Jurisdiction. 1

II.          CRIMINAL CONVICTIONS AS GROUNDS FOR INADMISSIBILITY AND REMOVABILITY.. 1

A.          Distinguishing between Inadmissibility and Removability. 1

B.          Differing Burdens of Proof 1

C.          Admissions 1

D.          What Constitutes a Conviction?. 1

1.           Final, Reversed and Vacated Convictions 1

2.           Expunged Convictions. 1

a.           Expungement Generally Does Not Eliminate Immigration Consequences of Conviction. 1

b.           Exception for Simple Drug Possession Offenses. 1

E.          Definition of Sentence. 1

1.           One-Year Sentences. 1

2.           Recidivist Enhancements 1

3.           Misdemeanors 1

4.           Wobblers. 1

F.           Overlap with Other Immigration and Criminal Sentencing Areas of Law.. 1

III.        METHOD OF ANALYSIS. 1

A.          Standard of Review.. 1

B.          Categorical Approach. 1

C.          Modified Categorical Approach. 1

1.           Charging Documents, Abstracts of Judgment, and Minute Orders  1

2.           Police Reports and Stipulations 1

3.           Probation or Presentence Reports 1

4.           Extra-Record Evidence. 1

5.           Remand. 1

IV.        CATEGORIES OF CRIMINAL OFFENSES THAT CAN BE GROUNDS OF REMOVABILITY AND/OR INADMISSIBILITY.. 1

A.          Crimes Involving Moral Turpitude (“CIMT”) 1

1.           Removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(i) 1

a.           Single Crime Committed within Five Years of Admission. 1

b.           Multiple Offenses at Any Time. 1

2.           Inadmissibility Pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) 1

3.           Definition of Crime Involving Moral Turpitude. 1

B.          Controlled Substances Offenses. 1

1.           Deportation Ground – 8 U.S.C. § 1227(a)(2)(B)(i) 1

2.           Inadmissibility Grounds – 8 U.S.C. § 1182(a)(2)(A)(i)(II) & 8 U.S.C. § 1182(a)(2)(C) 1

V.          CATEGORIES OF CRIMINAL OFFENSES THAT ARE GROUNDS OF REMOVABILITY ONLY.. 1

A.          Aggravated Felony. 1

1.           Murder, Rape or Sexual Abuse of a Minor – 8 U.S.C. § 1101(a)(43)(A) 1

a.           Rape. 1

b.           Sexual Abuse of a Minor 1

2.           Illicit Trafficking in a Controlled Substance – 8 U.S.C. § 1101(a)(43)(B) 1

3.           Illicit Trafficking in Firearms – 8 U.S.C. § 1101(a)(43)(C) 1

4.           Money Laundering – 8 U.S.C. § 1101(a)(43)(D) 1

5.           Explosives, Firearms and Arson – 8 U.S.C. § 1101(a)(43)(E) 1

6.           Crimes of Violence (“COV”) – 8 U.S.C. § 1101(a)(43)(F) 1

a.           Negligent and Reckless Conduct Insufficient 1

b.           Force Against Another 1

c.            Specific Crimes Considered. 1

7.           Theft or Burglary – 8 U.S.C. § 1101(a)(43)(G) 1

8.           Ransom Offenses – 8 U.S.C. § 1101(a)(43)(H) 1

9.           Child Pornography Offenses – 8 U.S.C. § 1101(a)(43)(I) 1

10.        RICO Offenses – 8 U.S.C. § 1101(a)(43)(J) 1

11.        Prostitution and Slavery Offenses – 8 U.S.C. § 1101(a)(43)(K) 1

12.        National Defense Offenses – 8 U.S.C. § 1101(a)(43)(L) 1

13.        Fraud or Deceit Offenses – 8 U.S.C. § 1101(a)(43)(M) 1

14.        Alien Smuggling – 8 U.S.C. § 1101(a)(43)(N) 1

15.        Illegal Reentry after Deportation for Aggravated Felony –  8 U.S.C. § 1101(a)(43)(O) 1

16.        Passport Forgery – 8 U.S.C. § 1101(a)(43)(P) 1

17.        Failure to Appear for Service of Sentence – 8 U.S.C. § 1101(a)(43)(Q) 1

18.        Commercial Bribery and Counterfeiting – 8 U.S.C. § 1101(a)(43)(R) 1

19.        Obstruction of Justice – 8 U.S.C. § 1101(a)(43)(S) 1

20.        Failure to Appear before a Court – 8 U.S.C. § 1101(a)(43)(T) 1

21.        Attempt or Conspiracy to Commit an Aggravated Felony – 8 U.S.C. § 1101(a)(43)(U) 1

22.        Particularly Serious Crimes 1

B.          Domestic Violence and Child Abuse Offenses. 1

1.           General Definition. 1

2.           Cases Considering Domestic Violence Convictions. 1

3.           Cases Considering Child Abuse Convictions 1

C.          Firearms Offenses. 1

D.          Miscellaneous Removable Offenses. 1

VI.        ELIGIBILITY FOR RELIEF DESPITE CRIMINAL CONVICTIONS. 1

 



CRIMINAL ISSUES IN IMMIGRATION LAW

I.       JUDICIAL REVIEW

A.      Judicial Review Scheme Before Enactment of the REAL ID Act of 2005

          In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which limited petition-for-review jurisdiction for individuals removable based on enumerated crimes.  See 8 U.S.C. § 1252(a)(2)(C) (permanent rules); IIRIRA section 309(c)(4)(G) (transitional rules).  For § 1252(a)(2)(C)’s jurisdiction-stripping provision to apply, its language requires that the agency determine that the petitioner is actually removable and order the petitioner removed on a basis specified in that section.  See Alvarez-Santos v. INS, 332 F.3d 1245, 1250–53 (9th Cir. 2003); see also Unuakhaulu v. Ashcroft, 416 F.3d 931, 936–37 (9th Cir. 2005) (exercising jurisdiction because while agency found applicant removable based on aggravated felony conviction, removal was not ordered on that basis and alternate grounds of removal were charged).

          Under the IIRIRA provisions, if the court determined that the petitioner was ordered removed or ineligible for relief from removal based on a conviction for an enumerated crime, it lacked direct judicial review over the petition for review.  Cf. Unuakhaulu, 416 F.3d at 937; Alvarez-Santos, 332 F.3d at 1253.  However, the court retained jurisdiction to determine its own jurisdiction, Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000), and to decide “three threshold issues: whether the petitioner was [1] an alien, [2] removable, and [3] removable because of a conviction for a qualifying crime,” see Zavaleta-Gallegos v. INS, 261 F.3d 951, 954 (9th Cir. 2001) (internal quotation marks, alteration, and emphasis omitted).

          Where direct judicial review was unavailable over a final order of deportation or removal, a petitioner could file a petition for writ of habeas corpus in district court under 28 U.S.C. § 2241.  See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (AEDPA and IIRIRA did not repeal habeas corpus jurisdiction to challenge the legal validity of a final order of deportation or removal).

          Cross-reference: Jurisdiction over Immigration Petitions, Limitations on Judicial Review Based on Criminal Offenses.

B.      The Current Judicial Review Scheme under the REAL ID Act of 2005

1.       Expanded Jurisdiction on Direct Review

In May 2005, Congress amended the INA to expand the scope of direct judicial review over petitions for review brought by individuals removable based on enumerated crimes, and to limit the availability of habeas corpus relief over challenges to final orders of removal, deportation, or exclusion.  Congress explicitly made the REAL ID Act’s judicial review amendments retroactive and directed that they shall apply to all cases in which the final administrative order was issued before, on, or after May 11, 2005, the date of enactment of the Act.  See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (habeas corpus petition pending when REAL ID Act enacted).

          The REAL ID Act added the following new judicial review provision to 8 U.S.C. § 1252:

Judicial review of certain legal claims

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

8 U.S.C. § 1252(a)(2)(D); REAL ID Act, Pub. L. No. 109-13, § 106, 119 Stat. 231, 310 (2005).  Pursuant to this new provision, the court has jurisdiction to review constitutional claims and questions of law presented in all petitions for review, including those brought by individuals found removable based on certain enumerated crimes.  See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir. 2005), as adopted by 466 F.3d 1121, 1124 (9th Cir. 2006) (en banc); see also, e.g., Garcia-Jimenez v. Gonzales, 488 F.3d 1082, 1085 (9th Cir. 2007); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006); Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1009–10 (9th Cir. 2006) (en banc); Lisbey v. Gonzales, 420 F.3d 930, 932 (9th Cir. 2005).

          “[T]he jurisdictional bar set forth in § 1252(a)(2)(C) is subject to two exceptions.  The first exception permits [] review of questions of law or constitutional claims.  The second exception permits [] review when the IJ denies relief on the merits of the claim rather than in reliance on the conviction, i.e., when the IJ concludes that the petitioner failed to establish the requisite grounds for relief.”  Perez-Palafox v. Holder, 744 F.3d 1138, 1144 (9th Cir. 2014) (internal quotation marks and citations omitted) (reviewing legal question whether the BIA engaged in impermissible fact finding).  See also Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (“Although [the court lacks] ‘jurisdiction to review any final order of removal against an alien who is removable by reason of having committed’ an aggravated felony (among other offenses), 8 U.S.C. § 1252(a)(2)(C), [the court] retains jurisdiction over ‘constitutional claims or questions of law,’ 8 U.S.C. § 1252(d), which includes the question whether a state crime of conviction is an aggravated felony.”); Alphonsus v. Holder, 705 F.3d 1031, 1036–37 (9th Cir. 2013) (regardless of whether 8 U.S.C. § 1252(a)(2)(C)’s bar to review for criminal aliens applied to petitioner’s case, an issue the court did not decide, the court had jurisdiction where the petitioner’s challenges were premised on constitutional and legal considerations and were not fact-based), abrogated on other grounds by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018); Planes v. Holder, 652 F.3d 991, 997–98 (9th Cir. 2011) (where BIA made no legal error regarding criminal grounds for removability, court lacked jurisdiction to review final order of removal under 8 U.S.C. § 1252(a)(2)(C)).

          Although the court does not have jurisdiction to evaluate discretionary decisions by the Attorney General, the court retains jurisdiction to review questions of law raised in a petition for review.  See Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015) (explaining review of particularly serious crime determination is limited to ensuring the agency relied on appropriate factors and proper evidence to reach its conclusion); Konou v. Holder, 750 F.3d 1120, 1127 (9th Cir. 2014) (the court cannot reweigh evidence to determine if crime was particularly serious, but the court has jurisdiction to determine whether correct legal standard was applied); Aguilar-Turcios v. Holder, 740 F.3d 1294, 1299 (9th Cir. 2014) (court lacks jurisdiction to review final order of removal against alien convicted of aggravated felony, but retains jurisdiction to review whether conviction qualifies as an aggravated felony under federal law); Anaya-Ortiz v. Holder, 594 F.3d 673, 676 (9th Cir. 2010) (explaining court had jurisdiction to determine if the BIA applied the correct legal standard in making its particularly serious crime determination); see also Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 (9th Cir. 2018) (reviewing whether BIA applied the proper legal standard, concluding BIA’s underlying rationale for its decision was unreasonable, and remanding for BIA to consider all reliable, relevant information, when making its particularly serious crime determination); Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) (“Although [the court lacks] ‘jurisdiction to review any final order of removal against an alien who is removable by reason of having committed’ an aggravated felony (among other offenses), 8 U.S.C. § 1252(a)(2)(C), [the court] retains jurisdiction over ‘constitutional claims or questions of law,’ 8 U.S.C. § 1252(d), which includes the question whether a state crime of conviction is an aggravated felony.”); Arbid v. Holder, 700 F.3d 379, 382 (9th Cir. 2012) (per curiam) (as amended) (jurisdiction to review BIA’s determination that alien was convicted of a particularly serious crime); Rivera-Peraza v. Holder, 684 F.3d 906, 909 (9th Cir. 2012) (court had jurisdiction to review whether BIA used erroneous legal standard in its analysis of petitioner’s application for waiver of inadmissibility); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010) (court retains jurisdiction to determine its jurisdiction, and thus has jurisdiction to determine whether an offense is an aggravated felony); Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010) (court has jurisdiction to determine whether a particular offense constitutes an offense governed by the jurisdiction-stripping provisions); Prakash v. Holder, 579 F.3d 1033, 1035 (9th Cir. 2009) (court has jurisdiction to determine as a matter of law whether a conviction constitutes an aggravated felony).

          “[J]urisdiction over ‘questions of law’ as defined in the Real ID Act includes not only ‘pure’ issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact.”  Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam); see also Chen v. Mukasey, 524 F.3d 1028, 1031 (9th Cir. 2008); Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007) (applying Ramadan to conclude that in assessing equitable tolling, “the due diligence question necessarily falls within Ramadan’s ambit as a mixed question of law and fact, requiring merely that we apply the legal standard for equitable tolling to established facts”).

          With respect to asylum, withholding of removal, and CAT claims of a petitioner who was convicted of an offense covered by § 1252(a)(2)(C), the court has jurisdiction to review the denial of an asylum application and to review the denial of withholding of removal and CAT relief to the extent that a petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims.  See Agonafer v. Sessions, 859 F.3d 1198, 1202 (9th Cir. 2017) (explaining the court has jurisdiction to review the denial of CAT relief when petitioner raises questions of law, including mixed questions of law and fact, or constitutional claims); Bolanos v. Holder, 734 F.3d 875, 876 (9th Cir. 2013) (“Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to consider a challenge to the removal order that rests on a firearm conviction.  But we retain jurisdiction to decide our own jurisdiction and to resolve questions of law.”); Pechenkov v. Holder, 705 F.3d 444, 448–49 (9th Cir. 2012) (the court lacked jurisdiction to review particularly serious crime determination where the petitioner asked only for a “re-weighing of the factors involved in that discretionary determination,” but holding court had jurisdiction over constitutional claims and questions of law raised regarding petitioner’s application to adjust status and the revocation of asylee status); see also Alphonsus, 705 F.3d at 1036–37 (exercising jurisdiction over petitioner’s challenges that were not fact-based and premised on constitutional and legal considerations); Planes v. Holder, 652 F.3d 991, 997–98 (9th Cir. 2011) (where BIA made no legal error regarding criminal grounds for removability, court lacked jurisdiction to review final order of removal under 8 U.S.C. § 1252(a)(2)(C)).  Moreover, as to “‘factual issues, when an IJ does not rely on an alien’s conviction in denying CAT relief and instead denies relief on the merits, none of the jurisdiction-stripping provisions ... apply to divest this court of jurisdiction.’”  Pechenkov, 705 F.3d at 978 (internal quotation marks and citation omitted); see also Haile v. Holder, 658 F.3d 1122, 1130–31 (9th Cir. 2011); Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008) (“The jurisdiction-stripping provision of 8 U.S.C. § 1252(a)(2)(C) does not deprive [the court] of jurisdiction over denials of deferral of removal under the CAT, which are always decisions on the merits.” (emphasis added)), overruled on other grounds by Maldonado v. Holder, 786 F.3d 1155, 1162–64 (9th Cir. 2015) (en banc).

          Thus, whereas the court previously had jurisdiction to evaluate only whether a criminal conviction was a qualifying offense for the purpose of IIRIRA’s jurisdictional bars, the court now has jurisdiction to review the petition for review on the merits, assuming no other provision in the INA limits judicial review. See Fernandez-Ruiz, 410 F.3d at 586–87, as adopted by 466 F.3d at 1124; see also, e.g., Garcia-Jimenez, 488 F.3d at 1085 (stating that court has jurisdiction over questions of law despite petitioner’s crime involving moral turpitude and controlled substance offense); Lisbey, 420 F.3d at 932–34 (concluding that petitioner was convicted of an aggravated felony and denying the petition on the merits).

2.       Applicability to Former Transitional Rules Cases

          In addition to restoring direct judicial review and eliminating habeas jurisdiction over final orders of removal in cases involving enumerated criminal offenses, § 106(d) of the REAL ID Act directs that a petition for review filed in a transitional rules case “shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252) [IIRIRA’s permanent rules].”  REAL ID Act, Pub. L. No. 109-13, § 106(d), 119 Stat. 231, 311 (2005); see also Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005) (applying REAL ID Act and explaining that jurisdiction over transitional rules cases is now governed by 8 U.S.C. § 1252 rather than 8 U.S.C. § 1105(a)). Accordingly, the restoration of direct judicial review over cases involving enumerated offenses applies to both transitional rules and permanent rules cases.

3.       Contraction of Habeas Jurisdiction

          In addition to expanding the scope of judicial review for aliens convicted of certain enumerated crimes, the REAL ID Act also “makes the circuit courts the ‘sole’ judicial body able to review challenges to final orders of deportation, exclusion, or removal.”  Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005); see also 8 U.S.C. § 1252(a)(5); Mamigonian v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (“the REAL ID Act precludes aliens … from seeking habeas relief over final orders of removal in district courts.”); Momeni v. Chertoff, 521 F.3d 1094, 1095–96 (9th Cir. 2008) (district court lacked habeas jurisdiction over petition filed after effective date of REAL ID Act).  “To accomplish this streamlined judicial review, the Act eliminated habeas jurisdiction, including jurisdiction under 28 U.S.C. § 2241, over final orders of deportation, exclusion, or removal.”  Alvarez-Barajas, 418 F.3d at 1052.

          The REAL ID Act required the district courts to transfer to the appropriate court of appeals all habeas petitions challenging final orders of removal, deportation or exclusion that were pending before the district court on the effective date of the REAL ID Act (May 11, 2005).  See REAL ID Act, Pub. L. No. 109-13, § 106(b), 119 Stat. 231, 310–11 (2005); see also Alvarez-Barajas, 418 F.3d at 1052.  Although the REAL ID Act did not address appeals of the denial of habeas relief already pending in the court of appeals on the effective date of the Act, this court has held that such petitions shall be treated as timely filed petitions for review.  See Martinez-Rosas v. Gonzales, 424 F.3d 926, 928–29 (9th Cir. 2005); Alvarez-Barajas, 418 F.3d at 1053; see also Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir. 2007) (holding that “a habeas petition is ‘pending’ in the district court within the meaning of [REAL ID Act]’s transfer provision when the notice of appeal was not filed at the time [REAL ID Act]’s was enacted, but was filed within the sixty day limitations period for filing a timely appeal of a habeas petition under Federal Rules of Appellate Procedure 4(a)(1)(B)”); cf. Singh v. Mukasey, 533 F.3d 1103, 1109 (9th Cir. 2008) (holding that aliens who lacked opportunity to file petitions for review prior to the enactment of the REAL ID Act had a grace period of 30 days from the Act’s effective date in which to seek review).

          Exceptions for continuing habeas jurisdiction survive, however, for claims like challenges to indefinite detention:  “[I]n cases that do not involve a final order of removal, federal habeas corpus jurisdiction remains in the district court, and on appeal to this Court, pursuant to 28 U.S.C. § 2241.”  Nadarajah v. Gonzales, 443 F.3d 1069, 1075–76 (9th Cir. 2006). See also Trinidad y Garcia v. Thomas, 683 F.3d 952 (9th Cir. 2012) (en banc) (“The REAL ID Act can be construed as being confined to addressing final orders of removal, without affecting federal habeas jurisdiction.”).

          Cross-reference: Jurisdiction over Immigration Petitions, Limitations on Judicial Review Based on Criminal Offenses.

II.      CRIMINAL CONVICTIONS AS GROUNDS FOR INADMISSIBILITY AND REMOVABILITY

A.      Distinguishing between Inadmissibility and Removability

          [There are] two distinct concepts in our immigration law—inadmissibility and removability.  “Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted.”  Judulang v. Holder, 565 U.S. 42, 45, 132 S. Ct. 476, 181 L. Ed. 2d 449 (2011).  “An inadmissible alien is one who was not admitted legally to the United States and is removable under § 1182, whereas a deportable alien is in the United States lawfully and is removable under § 1227.”  Vasquez-Hernandez v. Holder, 590 F.3d 1053, 1055 (9th Cir. 2010).

Nguyen v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018).

          Criminal activity may result in a variety of immigration consequences for aliens. Crimes may be grounds of inadmissibility which prohibit an alien’s admission to the United States as a non-immigrant or immigrant.  See 8 U.S.C. § 1182 (listing grounds of inadmissibility).  Crimes may also serve as grounds of deportation which result in an alien’s removal from the United States.  See 8 U.S.C. § 1227 (listing grounds of deportation).  Finally, crimes may render an alien ineligible for certain forms of relief from removal.  Note “the grounds for inadmissibility and deportability do not perfectly match, as some conduct and offenses can render a person inadmissible but not deportable, and vice versa.”  Nguyen, 901 F.3d at 1096.  Furthermore, “admission to ‘committing acts which constitute the essential elements of’ a specified offense can make an applicant inadmissible, while, in most cases, a conviction is required to make a noncitizen deportable for commission of a crime.”  Id. at 1097.

B.      Differing Burdens of Proof

          When analyzing an immigration case with criminal issues, it is crucial to determine whether the crime is being used to charge the alien as inadmissible, removable, or ineligible for relief from removal.  The posture of the case generally determines who bears the burden of proving the existence and nature of the conviction.  See Nguyen v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018) (“[W]hen a noncitizen is placed in removal proceedings, the burden of proof shifts depending on whether he is subject to inadmissibility or removability.”).  When an alien is charged as removable for a criminal conviction, it is the government’s burden of proving by clear and convincing evidence that the alien is removable.  See 8 U.S.C. § 1229a(c)(3); Nguyen v. Sessions, 901 F.3d 1093, 1096 (9th Cir. 2018) (“government bears the burden of showing removability when a noncitizen has been lawfully admitted to the United States”); Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010) (“The government bears the burden of proving by ‘clear, unequivocal, and convincing evidence that the facts alleged as grounds for [removability] are true.’” (quoting Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir. 1989)); Retuta v. Holder, 591 F.3d 1181, 1184 (9th Cir. 2010) (“The government bears the burden of proving by clear, unequivocal, and convincing evidence that the alien is removable.”); Altamirano v. Gonzales, 427 F.3d 586, 590–91 (9th Cir. 2005).  On the other hand, an alien who is an “applicant for admission” bears the burden of proving that he is “clearly and beyond a doubt entitled to be admitted and is not inadmissible under [8 U.S.C. § 1182].”  See 8 U.S.C. § 1229a(c)(2); Nguyen, 901 F.3d at 1096 (an “applicant for admission” bears the burden of proving he is not inadmissible under 8 U.S.C. § 1182); Altamirano, 427 F.3d at 590–91; see also Kepilino v. Gonzales, 454 F.3d 1057, 1059–60 (9th Cir. 2006) (discussing shifting burden of production in the admission context).

C.      Admissions

          When a crime is charged as a ground of inadmissibility rather than deportability, an alien may not always have to be convicted of the crime, but may only need to admit the essential elements of the crime.  Compare 8 U.S.C. § 1182(a)(2)(A)(i) (ground of inadmissibility for any alien who is convicted of or admits committing the essential acts of a crime involving moral turpitude) with 8 U.S.C. § 1227(a)(2)(A)(i) (ground of deportability for an alien convicted of a crime involving moral turpitude).  See also Nguyen v. Sessions, 901 F.3d 1093, 1097 (9th Cir. 2018) (“[A]dmission to ‘committing acts which constitute the essential elements of’ a specified offense can make an applicant inadmissible, while, in most cases, a conviction is required to make a noncitizen deportable for commission of a crime.”).  Admissions of controlled substances offenses may also be used to bar an alien’s entry.  See 8 U.S.C. § 1182(a)(2)(A)(i)(II); Pazcoguin v. Radcliffe, 292 F.3d 1209, 1218 (9th Cir. 2002) (applicant was inadmissible because he admitted prior use of marijuana in the Philippines, which constituted the essential elements of a violation of a foreign state’s law relating to a controlled substance).

          “[A]dmissions by an alien to facts alleged in the [notice to appear], and concessions concerning matters of law, made in the 8 C.F.R. § 1240.10(c) ‘pleading stage’ of removal proceedings may be relied upon by an IJ.”  Perez-Mejia v. Holder, 663 F.3d 403, 410 (9th Cir. 2011) (as amended).

D.      What Constitutes a Conviction?

          A conviction is defined as:

a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where –

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A); see also Reyes v. Lynch, 834 F.3d 1104, 1107 (9th Cir. 2016) (“The federal definition of conviction where adjudication of guilt has been withheld includes aliens who have entered pleas of nolo contendere and ‘the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.’); Retuta v. Holder, 591 F.3d 1181, 1185–86 (9th Cir. 2010); Murillo-Espinoza v. INS, 261 F.3d 771, 773–74 (9th Cir. 2001).  An offense committed while an alien is a juvenile qualifies as a conviction if the alien is tried as an adult.  See Vargas-Hernandez v. Gonzales, 497 F.3d 919, 927 (9th Cir. 2007).  See also Rangel-Zuazo v. Holder, 678 F.3d 967, 968–69 (9th Cir. 2012) (per curiam) (discussing the term “conviction” and reiterating that “where a juvenile offender is charged and convicted as an adult under state law, the offender has a ‘conviction’ for purposes of the INA”).

          Note that 8 U.S.C. “§ 1101 (a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.”  Planes v. Holder, 652 F.3d 991 (9th Cir. 2011).

1.       Final, Reversed and Vacated Convictions

          “A criminal conviction may not be considered by an IJ until it is final.”  Grageda v. INS, 12 F.3d 919, 921 (9th Cir. 1993) (pre-IIRIRA), superseded by statute as stated in Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011).  A conviction is final for immigration purposes “[o]nce an alien has been convicted by a court of competent jurisdiction and exhausted the direct appeals to which he is entitled.”  Grageda, 12 F.3d at 921 (internal quotation marks omitted).  “A conviction subject to collateral attack or other modification is still final.”  Id. (rejecting petitioner’s claim that his conviction was not final because he had a pending petition for writ of error coram nobis). See also Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011) (holding that “§ 1101 (a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.”).

          A conviction overturned for substantive, non-immigration reasons may not be used as the basis for removability.  See Nath v. Gonzales, 467 F.3d 1185, 1187–89 (9th Cir. 2006) (“[A] conviction vacated because of a procedural or substantive defect is not considered a conviction for immigration purposes and cannot serve as the basis for removability.” (internal quotation marks and citation omitted)); see also Poblete Mendoza v. Holder, 606 F.3d 1137, 1141 (9th Cir. 2010) (“A conviction vacated for reasons ‘unrelated to the merits of the underlying criminal proceedings’ may be used as a conviction in removal proceedings whereas a conviction vacated because of a procedural or substantive defect in the criminal proceedings may not.” (citation omitted)); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107–08 (9th Cir. 2006) (remanding for consideration of whether conviction was vacated on the merits or because of immigration consequences); Wiedersperg v. INS, 896 F.2d 1179, 1182–83 (9th Cir. 1990) (alien was entitled to reopen proceedings where state conviction was vacated).

          The government bears the burden of proving whether a state court reversed or vacated a prior conviction for reasons other than the merits.  Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011) (“[T]he inquiry must focus on the state court’s rationale for vacating the conviction, and the burden is on the government to prove that it was vacated solely for rehabilitative reasons or reasons related to his immigration status.” (internal quotation marks and citation omitted)); Nath, 467 F.3d at 1189; Cardoso-Tlaseca, 460 F.3d at 1107 n.3 (“[F]or the government to carry its burden in establishing that a conviction remains valid for immigration purposes, the government must prove with clear, unequivocal and convincing evidence that the Petitioner’s conviction was quashed solely for rehabilitative reasons or reasons related to his immigration status, i.e. to avoid adverse immigration consequences.” (internal quotation marks and citation omitted)).

2.       Expunged Convictions

a.       Expungement Generally Does Not Eliminate Immigration Consequences of Conviction

          Following codification of the statutory definition of conviction in 8 U.S.C. § 1101(a)(48)(A), this court has deferred to the BIA’s interpretation of the statute as “preclud[ing] the recognition of subsequent state rehabilitative expungements of convictions.”  Murillo-Espinoza v. INS, 261 F.3d 771, 774 (9th Cir. 2001) (expunged theft conviction still qualified as an aggravated felony).  “For immigration purposes, [therefore,] a person continues to stand convicted of an offense notwithstanding a later expungement under a state’s rehabilitative law.”  Ramirez-Castro v. INS, 287 F.3d 1172, 1174 (9th Cir. 2002) (expungement of a misdemeanor California conviction for carrying a concealed weapon did not eliminate the immigration consequences of the conviction); see also Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078–79 (9th Cir. 2013) (notwithstanding expungement of prior felony offense for possession of marijuana for sale, alien was ineligible for adjustment of status); Ramirez-Altamirano v. Holder, 563 F.3d 800, 805–06 (9th Cir. 2009), overruled by Nunez-Reyes v. Holder, 646 F.3d 684, 690 (9th Cir. 2011) (en banc); de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1024 (9th Cir. 2007); Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1067 (9th Cir. 2003) (expunged conviction for lewdness with a child qualified as an aggravated felony).

b.      Exception for Simple Drug Possession Offenses

          In general, for convictions occurring prior to July 14, 2011, see Nunez-Reyes v. Holder, 646 F.3d 684, 694 (9th Cir. 2011) (en banc), the government may not remove an alien on the basis of a simple drug possession conviction that has been expunged under a state rehabilitative statute and would satisfy the requirements of the Federal First Offender Act (“FFOA”), 18 U.S.C. § 3607.  See Lujan-Armendariz v. INS, 222 F.3d 728, 749–50 (9th Cir. 2000), overruled by Nunez-Reyes, 646 F.3d at 690; see also Lopez v. Sessions, 901 F.3d 1071, 1075 (9th Cir. 2018) (for convictions that occurred prior to the court’s holding in Nunez-Reyes, a person generally continues to stand convicted of an offense under state law notwithstanding a later expungement, unless the requirements of the FFOA are satisfied); Rice v. Holder, 597 F.3d 952, 956–57 (9th Cir. 2010) (alien’s conviction in state court for using or being under the influence of a controlled substance was eligible for the same immigration treatment as those convicted of drug possession under FFOA), overruled by Nunez-Reyes, 646 F.3d at 695; Romero v. Holder, 568 F.3d 1054, 1059–60 (9th Cir. 2009), overruled by Nunez-Reyes, 646 F.3d at 690; Ramirez-Altamirano v. Holder, 563 F.3d 800, 806–08 (9th Cir. 2009), overruled by Nunez-Reyes, 646 F.3d at 690 (alien’s conviction for possession of drug paraphernalia under California law qualified for similar treatment under Lujan-Armendariz rationale); de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1024–25 (9th Cir. 2007); Dillingham v. INS, 267 F.3d 996, 1006–07 (9th Cir. 2001), overruled by Nunez-Reyes, 646 F.3d at 690 (reversing BIA’s refusal to recognize foreign expungement of simple possession that would have qualified for federal first offender treatment).  The alien’s offense had to fall within the scope of the FFOA, and not just a state rehabilitative statute, for the alien to avoid immigration consequences. See Dillingham, 267 F.3d at 1006–07; Paredes-Urrestarazu v. INS, 36 F.3d 801, 815 (9th Cir. 1994); see also Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 983–84 (9th Cir. 2006).  Further, the federal first offender exception does not apply to convicted aliens who are eligible for, but have not yet received, expungement of the conviction.  See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1291 (9th Cir. 2004) (removal order based on conviction that had not yet been expunged did not violate equal protection).  “FFOA relief is unavailable when an offender has violated a condition of probation.”  Estrada v. Holder, 560 F.3d 1039, 1041 (9th Cir. 2009), overruled in part as recognized by Madrigal-Barcenas v. Lynch, 797 F.3d 643 (9th Cir. 2015).

In Villavicencio-Rojas v. Lynch, 811 F.3d 1216, 1219 (9th Cir. 2016), the court held that “two counts amount[ed] to a single ‘offense’ under the FFOA because they arose out of a single event, composed a single criminal case, and triggered a single, undivided sentence.” As such, although the petitioner “was charged with possession of two different drugs, that alone does not change [the petitioner’s] status as a first-time drug offender under the FFOA.” Id. (because convictions occurred prior to 2011, Nunez-Reyes did not bar Villavicencio from relief).

“[T]he FFOA only applies to first time drug offenders convicted of simple possession of a controlled substance.”  Lopez, 901 F.3d at 1075 (“Because Lopez was convicted of possession for sale of a controlled substance, the exception does not apply.”).

          The court has held that persons convicted for possession of drug paraphernalia may be eligible for the same immigration treatment as those convicted under the FFOA.  See Ramirez-Altamirano, 563 F.3d at 808–09 (pre-Nunez-Reyes, applying rule in Lujan-Armendariz) (petitioner convicted of California Health and Safety Code § 11364).

          The court held in Romero, 568 F.3d at 1062 (pre-Nunez-Reyes, applying rule in Lujan-Armendariz), that the “facts underlying a conviction that would have been eligible for relief under the FFOA, but was expunged under a state rehabilitative statute, cannot serve as an ‘admission’ of a drug offense, statutorily barring a finding of good moral character under 8 U.S.C. § 1101(f)(3).”

          In Nunez-Reyes, the court overruled Lujan-Armendariz, holding that the constitutional guarantee of equal protection does not require treating an expunged state conviction of a drug crime the same as a federal drug conviction that has been expunged under FFOA.  Nunez-Reyes, 646 F.3d at 690.  Accordingly, all cases that followed the rule in Lujan-Armendariz, were overruled, including Romero, 568 F.3d at 1059–60, Ramirez-Altamirano, 563 F.3d at 806, Dillingham v. INS, 267 F.3d 996, 1006–07 (9th Cir. 2001), and Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 n.4 (9th Cir. 2000). The new rule announced by Nunez-Reyes only applies prospectively.  Nunez-Reyes, 646 F.3d at 69094 (holding that Lujan-Armendariz continues to apply to those aliens convicted before the publication date of Nunez-Reyes, July 14, 2011).  See also Lopez, 901 F.3d at 1075 n.2 (applying Lujan-Armendariz, where conviction was before the publication date of Nunez-Reyes); Villavicencio-Rojas, 811 F.3d at 1218 (“The parties agree that Nunez-Reyes does not bar Villavicencio from relief, as his convictions occurred before 2011.”).

The “en banc decision in Nunez-Reyes focused on the equal protection issue, and ‘[the court] assume[d], without deciding, that the statutory term “‘conviction’” includes expunged state convictions.”  Reyes v. Lynch, 834 F.3d 1104, 1107 (9th Cir. 2016) (citation omitted).  In Reyes, the court held that “a state conviction expunged under state law is still a conviction for purposes of eligibility for cancellation of removal and adjustment of status.  And even though incarceration is not required, the federal definition of conviction is satisfied regardless of the rehabilitative purpose of probation, where the alien was punished or his liberty was restrained by the terms of his probation. 834 F.3d at 1108.

E.      Definition of Sentence

          Under the INA, “[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”  8 U.S.C. § 1101(a)(48)(B).  See also Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132–33 (9th Cir. 2016) (“‘Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.’ Id. at § 1101(a)(48)(B).”).

          In the criminal context, the court has held that the sentence imposed may be the term later imposed after revocation of probation.  See United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (defendant in unlawful reentry case was convicted of aggravated felony because even though he was initially granted probation, probation was revoked and he was sentenced to two years’ imprisonment).

1.       One-Year Sentences

          A sentence “for which the term of imprisonment [is] at least one year” means the actual sentence imposed by the court.  Alberto-Gonzalez v. INS, 215 F.3d 906, 910 (9th Cir. 2000) (rejecting government’s contention that the relevant term of imprisonment is the potential sentence that the judge could have imposed); see also United States v. Pimentel-Flores, 339 F.3d 959, 962 (9th Cir. 2003).

          The phrase “at least one year” refers to a sentence of 365 days or more.  Matsuk v. INS, 247 F.3d 999, 1001–02 (9th Cir. 2001) (rejecting petitioner’s contention that the phrase “should be read to mean a ‘natural or lunar’ year, which is composed of 365 days and some hours”), overruled on other grounds by Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (en banc); Bayudan v. Ashcroft, 298 F.3d 799, 800 (9th Cir. 2002) (order) (setting aside previous order dismissing petition for lack of jurisdiction because 364-day sentence for manslaughter was not a crime of violence constituting an aggravated felony).  See also Arellano Hernandez v. Lynch, 831 F.3d 1127, 1132–33 (9th Cir. 2016) (“[S]entence of 365 days equates to imprisonment of ‘at least one year’”); United States v. Gonzalez-Tamariz, 310 F.3d 1168, 1171 (9th Cir. 2002).

2.       Recidivist Enhancements

          Recidivist enhancements are not considered when determining the nature of an offense, but may be considered when calculating the amount of time served on account of an offense.  In United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4, the defendant received a two-year sentence for his conviction for petty theft with a prior.  This court held that the conviction was not an aggravated felony under federal sentencing law because the maximum possible sentence for petty theft in California, without the recidivist enhancement, was six months.  See also Rusz v. Ashcroft, 376 F.3d 1182, 1185 (9th Cir. 2004) (alien was not convicted of an aggravated felony which would deprive the court of jurisdiction because his California conviction of petty theft with a prior was not a crime for which a sentence of one year or longer could be imposed). However, this court held in Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1129 (9th Cir. 2007), implied overruling on other grounds recognized by Cardenas-Delgado v. Holder, 720 F.3d 1111 (9th Cir. 2013), that for purposes of determining eligibility for relief under former § 212(c), it could consider recidivist enhancements when calculating the amount of time served.  Saravia-Paguada explained that Corona-Sanchez and Rusz stand for the proposition that recidivism should not inform the nature of an offense, but may be considered when determining the actual time served.  See id. at 1127–29.

          Note that in United States v. Rodriguez, 553 U.S. 377 (2008), the Supreme Court reversed the Ninth Circuit’s decision in United States v. Rodriguez, 464 F.3d 1072 (9th Cir. 2006), which applied the rule in Corona-Sanchez holding that the maximum term of imprisonment under the Armed Career Criminal Act must be determined without taking recidivist enhancements into account.  In reversing the Ninth Circuit decision, the Supreme Court held that when determining the “maximum term of imprisonment” it is necessary to refer to the applicable recidivist enhancements for prior offenses.  See Rodriguez, 553 U.S. at 382–84; see also United States v. Rivera, 658 F.3d 1073, 1076 (9th Cir. 2011) (“because the recidivist sentence does relate to the commission of the repeat offense and is clearly part of the sentence “prescribed by law,” a recidivist sentence may be considered in determining whether a prior conviction qualifies as a predicate offense”), overruled in part as stated in Lopez-Valencia v. Lynch, 798 F.3d 863, 872 n.6 (9th Cir. 2015).

3.       Misdemeanors

          In Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court held that a state drug offense may only be an aggravated felony if it proscribes conduct punishable as a felony under federal law.  However, an offense designated by the state as a misdemeanor, but by federal law as a felony, may qualify as an aggravated felony.  See, e.g., United States v. Alvarez-Gutierrez, 394 F.3d 1241 (9th Cir. 2005); United States v. Robles-Rodriguez, 281 F.3d 900, 903 (9th Cir. 2002); see also Habibi v. Holder, 673 F.3d 1082, 1088 (9th Cir. 2011); United States v. Rivera, 658 F.3d 1073, 1075–76 (9th Cir. 2011) (holding that defendant’s state felony petty theft conviction qualified as an aggravated felony, although under California law conviction for petty theft was misdemeanor), overruled in part as stated in Lopez-Valencia v. Lynch, 798 F.3d 863, 872 n.6 (9th Cir. 2015).  A state conviction for misdemeanor sexual battery has been held to be a crime involving moral turpitude.  See Gonzales-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013).

4.       Wobblers

          An “offense [that] can result in a range of punishments ... is referred to as a ‘wobbler’ statute, providing for either a misdemeanor or a felony conviction.”    Garcia-Lopez v. Ashcroft, 334 F.3d 840, 844 (9th Cir. 2003), overruled on other grounds by Ceron v. Holder, 747 F.3d 773, 777 (9th Cir. 2014) (en banc); see also Arrellano Hernandez v. Lynch, 831 F.3d 1127, 1132 (9th Cir. 2016); Ceron, 747 F.3d at 777 (Certain statutes are known in California as ‘wobblers’ because the state court can treat a conviction under [the statute] either as a felony or as a misdemeanor.”); Lopez-Vasquez v. Holder, 706 F.3d 1072, 1075 (9th Cir. 2013); Ferreira v. Ashcroft, 382 F.3d 1045, 1051 (9th Cir. 2004), overruled on other grounds by Ceron, 747 F.3d at 777–78; LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999).  For wobbler offenses, “it is clear that a state court’s designation of a criminal offense [as a misdemeanor or a felony] is binding on the BIA for purposes of determining whether there has been a conviction under the INA.”  Garcia-Lopez, 334 F.3d 840, 844 (9th Cir. 2003), overruled on other grounds by Ceron, 747 F.3d at 777–78.

“Under California law, a ‘wobbler’ is presumptively a felony and ‘remains a felony except when the discretion is actually exercised’ to make the crime a misdemeanor.” [Ewing v. California, 538 U.S. 11, 16 (2003)].  An offense is “deemed a felony” when a defendant is convicted and “granted probation without the imposition of a sentence.”  People v. Feyrer, 48 Cal. 4th 426, 106 Cal. Rptr. 3d 518, 226 P.3d 998, 1007 (2010), superseded by statute on another ground as stated in People v. Park, 56 Cal.4th 782, 156 Cal.Rptr.3d 307, 299 P.3d 1263, 1266 n.4 (2013).  The offense remains a felony unless the sentencing court subsequently reduces it to a misdemeanor.

Arellano Hernandez, 831 F.3d at 1132.

          In Ceron, the en banc court explained that in California, California Penal Code Section 19specifies a general statutory maximum penalty of six months’ imprisonment in the county jail for all misdemeanors, ‘[elxcept in cases where a different punishment is prescribed by any law of this state.’”  Ceron, 747 F.3d at 778 (quoting Cal. Penal Code § 19). When a different maximum penalty is prescribed by statute, the six-month default maximum does not apply.  The en banc court in Ceron explained that in both Garcia-Lopez and Ferreira the court erroneously applied the six-month maximum.  Accordingly, the en banc court overruled that aspect of those cases.

F.      Overlap with Other Immigration and Criminal Sentencing Areas of Law

          Some grounds of inadmissibility do not require that an alien be convicted of or admit a crime, but rather require proof of undesirable behavior.  Although not considered here, these grounds should be kept in mind as they may overlap with the grounds discussed in this section.  See, e.g., 8 U.S.C. § 1182(a)(2)(D)(i) (prostitution and commercialized vice); 8 U.S.C. § 1182(a)(6)(E)(i) (alien smuggling); 8 U.S.C. § 1182(a)(2)(E) (aliens asserting immunity from prosecution); 8 U.S.C. § 1182(a)(2)(H) (trafficking in persons); 8 U.S.C. § 1182(a)(2)(I) (money laundering).

          The criminal sentencing guidelines also are similar to certain immigration provisions, and thus cases interpreting them may be relevant.  U.S.S.G. § 2L1.2 defines “aggravated felony” with specific reference to 8 U.S.C. § 1101(a)(43) (pursuant to § 2L1.2 certain drug trafficking offenses, crimes of violence, aggravated felonies, etc. may be used to enhance an alien’s sentence for violating 8 U.S.C. § 1326), and should be relevant to immigration cases considering the same statute.  In some cases, the court has found criminal sentencing cases controlling in the immigration context.  For example, this court has held that for purposes of determining whether a crime constituted aggravated felony sexual abuse of a minor, prior precedent in a criminal case was controlling.  See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066–67 (9th Cir. 2003) (citing United States v. Baron-Medina, 187 F.3d 1144 (9th Cir. 1999)); Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002) (per curiam) (applying construction of “crime of violence” from sentencing case); Castro-Baez v. Reno, 217 F.3d 1057, 1058–59 (9th Cir. 2000) (applying definition of rape adopted in a criminal case); Ye v. INS, 214 F.3d 1128, 1132 (9th Cir. 2000) (applying the uniform definition of “burglary” in the Career Criminals Amendment Act).

          In Lopez v. Gonzales, 549 U.S. 47 (2006), the Supreme Court held that the same definition of aggravated felony drug offense should be used in both the criminal sentencing and immigration contexts, rejecting the Ninth Circuit’s prior cases which defined the term differently in the two contexts.  The Court held that in both contexts, a state offense could only be an aggravated felony if it proscribes conduct punishable as a felony under federal law.

          U.S.S.G. § 2L1.2 also has provisions regarding crimes of violence, firearms offenses, and drug trafficking offenses.  Cases interpreting these statutes may also be useful in analyzing criminal immigration cases, but these terms are defined differently in the immigration statute, and thus cases interpreting them are not controlling.  Compare Valencia v. Gonzales, 439 F.3d 1046, 1053 (9th Cir. 2006) (statutory rape is not a crime of violence under the immigration statute), with United States v. Asberry, 394 F.3d 712, 717–18 (9th Cir. 2005) (holding that statutory rape is a crime of violence under U.S.S.G. § 4B1.2).  See also Cisneros-Perez v. Gonzales, 465 F.3d 386, 392 (9th Cir. 2006) (holding that the modified categorical approach applies to prior crimes of domestic violence and distinguishing United States v. Belless, 338 F.3d 1063, 1065–67 (9th Cir. 2003), abrogated on other grounds by United States v. Castleman, 572 U.S. 157 (2014), which held otherwise).  But see Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (discussing rule of lenity and stating that the statutory definition of crime of violence must be interpreted “consistently, whether we encounter its application in a criminal or noncriminal context”).

          Cross-reference: Aggravated Felonies, Offenses Defined as Aggravated Felonies, Illicit Trafficking in Controlled Substances, or State Drug Offenses.

III.    METHOD OF ANALYSIS

A.      Standard of Review

          This court reviews de novo whether a state or federal conviction is an offense with immigration consequences.  See, e.g., Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016) (“We review de novo whether a particular conviction under state law is a removable offense.”); Quijada-Aguilar v. Lynch, 799 F.3d 1303, 1305 (9th Cir. 2015) (“We review de novo the BIA’s determination that a conviction under California Penal Code § 192(a) is a crime of violence.”); Roman-Suaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014) (reviewing de novo whether offense constitutes an aggravated felony); Covarrubias Teposte v. Holder, 632 F.3d 1049, 1052 (9th Cir. 2011) (reviewing “de novo whether a criminal conviction is a crime of violence and therefore an aggravated felony rendering an alien removable”); Szalai v. Holder, 572 F.3d 975, 978 (9th Cir. 2009) (per curiam) (“The Ninth Circuit reviews de novo whether a conviction constitutes a removable offense under the Immigration and Nationality Act.”).

          The court reviews for abuse of discretion whether an alien’s crime was particularly serious, rendering him ineligible for withholding of removal.  See  Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1077 (9th Cir. 2015); Alphonsus v. Holder, 705 F.3d 1031, 1043 (9th Cir. 2013), abrogated on other grounds by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018); Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012) (per curiam) (“[D]etermining whether a crime is particularly serious is an inherently discretionary decision, and we will review such decisions for abuse of discretion.”).  “[R]eview is limited to ensuring that the agency relied on the appropriate factors and proper evidence to reach [its] conclusion.” Avendano-Hernandez, 800 F.3d at 1077 (internal quotation marks and citation omitted).

The court does “not defer to an agency’s interpretations of state law or provisions of the federal criminal code.”  Sandoval v. Sessions, 866 F.3d 986, 988 (9th Cir. 2017).

The court reviews de novo the agency’s determination of the elements of a statute of conviction.  See Vasquez-Valle v. Sessions, 899 F.3d 834, 838 (9th Cir. 2018); Escobar v. Lynch, 846 F.3d 1019, 1023 (9th Cir. 2017); Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir. 2013); Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010).

Deference may be owed to the BIA’s interpretation of the statutes and regulations it is charged with administering, including the INA.  See Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 778 (9th Cir. 2018); Escobar, 846 F.3d at 1023; Castrijon-Garcia, 704 F.3d at 1208; Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010); Fregozo v. Holder, 576 F.3d 1030, 1034 (9th Cir. 2009).

B.      Categorical Approach

          In order to determine whether a conviction constitutes a predicate offense for immigration purposes, the court applies the two-step approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990) and Shepard v. United States, 544 U.S. 13, 15 (2005).  See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1100 (9th Cir. 2011) (as amended); see also Myers v. Sessions, 904 F.3d 1101, 1107 (9th Cir. 2018) (explaining categorical approach as set forth in Taylor and Descamps v. United States, 570 U.S. 254 (2013)); Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (as amended); Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016) (“In determining whether the conduct proscribed by the statute involves moral turpitude, we apply the categorical approach of Taylor v. United States, 495 U.S. 575, 598–602 (1990), comparing the elements of the state offense to those of the generic CIMT to determine if there is a categorical match.”); Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013); Olivas-Motta v. Holder, 746 F.3d 907, 910 (9th Cir. 2013); Robles-Urrea v. Holder, 678 F.3d 702, 707 (9th Cir. 2012); Parrilla v. Gonzales, 414 F.3d 1038, 1042 (9th Cir. 2005).  Under those approaches, we compare the crime of conviction … with the generic crime … to determine whether the latter encompasses the former.  Hernandez-Cruz, 651 F.3d at 1100 (comparing Hernandez-Cruz’s convictions under California Penal Code § 459 to the generic crime, attempted theft); see also Barrera-Lima v. Sessions, 901 F.3d 1108, 1115 (9th Cir. 2018) (after identifying requisite elements for conviction under the statute, “apply the categorical approach to determine whether the elements of conviction match the generic definition of a crime involving moral turpitude”).  “[W]here a statute has both criminal and noncriminal applications,’ the statute should be consistently interpreted in both criminal and noncriminal, i.e., immigration, applications.”  Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014).  In the immigration context, [the categorical] approach … generally applies in determining whether an alien is removable in the first instance or whether he is statutorily barred from various forms of relief.” Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015).

Because Congress predicated deportation ‘on convictions, not conduct,’ the [categorical] approach looks to the statutory definition of the offense of conviction, not to the particulars of an alien’s behavior.”  Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015).  See also Villavicencio, 904 F.3d at 664 (explaining that the court only examines the statutory definition of the crime to determine whether the state statute of conviction renders an alien removable under the statute of removal, without looking to the actual conduct underlying the petitioner’s offense).  “‘[The court] look[s] not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.’”  Murillo-Prado v. Holder, 735 F.3d 1152, 1156 (9th Cir. 2013) (per curiam) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)); see also Martinez-Cedillo v. Sessions, 896 F.3d 979, 993 (9th Cir. 2018) (“Under the categorical approach, we look ‘not to the facts of the particular prior case’ but to whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal offense.” (quoting Moncrieffe, 569 U.S. at 190)); Ramirez v. Lynch, 810 F.3d 1127, 1130–31 (9th Cir. 2016) (“To assess whether a state conviction qualifies as an aggravated felony, we generally employ the ‘categorical approach’ to determine whether the state offense matches the ‘generic’ federal definition of the pertinent offense listed in the INA: here, a crime of violence under 18 U.S.C. § 16(a) or (b).”); Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (compare the elements of the state offense with those of the generic definition of a CIMT to determine if there is a categorical match).  “By ‘generic,’ [the Court] mean[s] the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison.  Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense “‘necessarily’ involved ... facts equating to [the] generic [federal offense].”  Moncrieffe, 569 U.S. at 190 (citation omitted).  By focusing on the legal question of what a conviction necessarily established, the categorical approach ordinarily works to promote efficiency, fairness, and predictability in the administration of immigration law.”  Mellouli, 135 S. Ct. at 1987.

          The court will “first make a categorical comparison of the elements of the statute of conviction to the generic definition, and decide whether the conduct proscribed [by the state statute] is broader than, and so does not categorically fall within, this generic definition.”  Huerta-Guevara v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003); see also Descamps v. United States, 570 U.S. 254, 257 (2013) (under the categorical approach “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.”); Quintero-Cisneros v. Sessions, 891 F.3d 1197, 1200 (9th Cir. 2018) (compare the elements of the offense of conviction with the elements of the federal generic offense to see if they are a categorical match); United States v. Benally, 843 F.3d 350, 352 (9th Cir. 2016) (as amended) (“Under this approach, we do not look to the particular facts underlying the conviction, but ‘compare the elements of the statute forming the basis of the defendant’s conviction with the elements of’ a ‘crime of violence.’”); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (“Under the categorical approach, we examine only the statutory definition of the crime to determine whether the state statute of conviction renders an alien removable under the statute of removal, … , without looking to the actual conduct underlying the petitioner’s offense.” (citation and internal quotation marks omitted)); Rodriguez-Castellon, 733 F.3d at 853; Robles-Urrea, 678 F.3d at 707; Rohit v. Holder, 670 F.3d 1085, 1088 (9th Cir. 2012); Hoang v. Holder, 641 F.3d 1157, 1159–60 (9th Cir. 2011); Tijani v. Holder, 628 F.3d 1071, 1075 (9th Cir. 2010).

          “Under the Taylor categorical approach, this court must look to ‘the ordinary case’ that is prosecuted by the state, not some extreme hypothetical.  James v. United States, 550 U.S. 192, 208 (2007).”  Rebilas v. Mukasey, 527 F.3d 783, 785 (9th Cir. 2008).  The court will examine “what types of conduct are ordinarily prosecuted … .”  See Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (explaining that an offender ‘must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.’).”  Rebilas, 527 F.3d at 785; see also Ye v. INS, 214 F.3d 1128, 1133 (9th Cir. 2000) (stating that the categorical approach is based only on the elements of the statute, and the court will not “look to the particular facts underlying the conviction”).

In applying the categorical approach, we “must presume that the conviction ‘rested upon nothing more than the least of the acts’ criminalized, and then determine whether even those acts are encompassed by the generic federal offense.”  Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S. Ct. 1678, 185 L. Ed. 2d 727 (2013) (quoting Johnson v. United States, 559 U.S. 133, 137, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010) (alterations omitted) ).  A statute is overbroad if “there is a ‘realistic probability’ of its application to conduct that falls beyond the scope of the generic federal offense.” Castrijon-Garcia [v. Holder, 704 F.3d 1205, 1212 (9th Cir. 2013)], (quoting Nunez v. Holder, 594 F.3d 1124, 1129 (9th Cir. 2010)).

Menendez v. Whitaker, 908 F.3d 467, 472 (9th Cir. 2018); see also Duenas-Alvarez, 549 U.S. at 193; Vasquez-Valle v. Sessions, 899 F.3d 834, 839 (9th Cir. 2018); Robles-Urrea, 678 F.3d at 707; Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir. 2007).

          “[I]n conducting the categorical analysis, [the court does] not consider the availability of affirmative defenses; the fact that there may be an affirmative defense under the federal statute, but not under the state statute of conviction, does not mean that the state conviction does not fall categorically within the federal statute.”  Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011), implied overruling on other grounds recognized by United States v. Aguilera-Rios, 769 F.3d 626, 634 (9th Cir. 2014).

          See also Villavicencio v. Sessions, 904 F.3d 658, 667 (9th Cir. 2018) (as amended) (concluding that petitioner was not removable under 8 U.S.C. § 1227(a)(2)(B)(i) and that N.R.S. §§ 199.480 and 454.351 are both overbroad and indivisible); Vasquez-Valle v. Sessions, 899 F.3d 834, 840–41 (9th Cir. 2018) (concluding that O.R.S. § 162.285 is overbroad because the minimum conduct it criminalizes is not necessarily fraudulent, base, vile, or depraved, and thus it is not a categorical match to a CIMT); Quintero-Cisneros v. Sessions, 891 F.3d 1197, 1202 (9th Cir. 2018) (concluding that Washington conviction for third degree assault of a child was a categorical match for sexual abuse of a minor, an aggravated felony that bars the relief from removal); Solorio-Ruiz v. Sessions, 881 F.3d 733, 738 (9th Cir. 2018) (California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F)); Sandoval v. Sessions, 866 F.3d 986, 993 (9th Cir. 2017) (as amended) (concluding that because Oregon’s definition of “delivery” includes solicitation, O.R.S. § 475.992(1)(a) is not a categorical match to a “drug trafficking crime,” and therefore, petitioner’s conviction for delivery of heroin did not qualify as an aggravated felony under the categorical approach); Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015) (conviction was categorically not generic theft offense); Garcia v. Lynch, 786 F.3d 789, 794 (9th Cir. 2015) (conviction under Cal. Penal Code § 487(a) is not categorically an aggravated felony because section 487(a) is doubly overbroad); Rosales Rivera v. Lynch, 816 F.3d 1064, 1074–75 (9th Cir. 2015) (Cal. Penal Code § 118 categorically is not a crime involving moral turpitude); Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267–68 (9th Cir. 2013) (conviction for misdemeanor sexual battery involved moral turpitude); Castrijon-Garcia v. Holder, 704 F.3d 1205, 1212–14 (9th Cir. 2013) (simple kidnapping not categorically a crime of moral turpitude); Barragan-Lopez v. Holder, 705 F.3d 1112, 1115–17 (9th Cir. 2013) (conviction for false imprisonment under Cal. Penal Code § 210.5 was categorically a crime of violence, making the alien removable as an aggravated felon); Rohit, 670 F.3d at 1088–91 (holding that conviction under Cal. Penal Code § 647(b) constituted a conviction of a crime involving moral turpitude); Jimenez-Juarez v. Holder, 635 F.3d 1169, 1170–71 (9th Cir. 2011) (holding that conviction for child molestation in the third degree under Wash. Rev. Code § 9A.44.089 categorically constitutes a crime of child abuse within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i)); Covarrubias Teposte v. Holder, 632 F.3d 1049, 1052–56 (9th Cir. 2011) (determining that California conviction for shooting at an inhabited dwelling or vehicle was not categorically a crime of violence); Mendoza v. Holder, 623 F.3d 1299, 1302–04 (9th Cir. 2010) (applying categorical approach and determining that conviction for robbery under Cal. Penal Code § 211 was categorically a crime of moral turpitude); Hernandez-Aguilar v. Holder, 594 F.3d 1069, 1073 (9th Cir. 2010) (applying two-step test in Taylor analyzing whether Cal. Health & Safety Code § 11379(a) categorically qualified as a crime relating to a controlled substance); Pelayo-Garcia v. Holder, 589 F.3d 1010, 1012–16 (9th Cir. 2009) (sexual abuse of a minor not categorically an aggravated felony).

C.      Modified Categorical Approach

          If the state statute is divisible, and the full range of conduct in the state statute is not included in the federal offense, we may use the modified categorical approach so long as one of the crimes included in the statute is a categorical match for the federal generic offense.”  Rodriguez-Castellon v. Holder, 733 F.3d 847 (9th Cir. 2013) (citing Descamps v. United States, 570 U.S. 254, 263 (2013)).  See also Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (as amended) (“In a narrow range of cases, when a state statute is broader than the elements of the federal offense, we may employ the modified categorical approach to determine if the state crime is a match for the federal offense.”); Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016) (“In a ‘narrow range of cases,’ when the statute at issue is divisible, we may employ a “modified categorical approach.”).  “If a statute does not list alternative elements, but merely encompasses different means of committing an offense, the statute is indivisible and the modified categorical approach has no role to play.”  Lopez-Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015) (internal quotation marks and citation omitted); see also Sandoval v. Sessions, 866 F.3d 986, 994 (9th Cir. 2017) (as amended) (concluding the modified categorical approach could not be applied because O.R.S. § 475.992(1)(a) is indivisible with respect to whether an “attempt” is accomplished by solicitation); Chavez-Solis v. Lynch, 803 F.3d 1004, 1013 (9th Cir. 2015) (modified categorical approach could not apply where statute was indivisible).

          A divisible statute is one that:

sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.  If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits ... courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.  The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.

Descamps, 570 U.S. at 257; see also Ramirez, 810 F.3d at 1131 (“A divisible statute lists alternative sets of elements, in essence ‘several different crimes.’ [Descamps, 570 U.S. at 264]. ‘If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of.’ Id.”); Lopez-Valencia, 798 F.3d at 868 (explaining Descamps); Murillo-Prado v. Holder, 735 F.3d 1152, 1156 (9th Cir. 2013) (per curiam) (quoting Descamps); Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013) (same).  “‘[A] statute is divisible only if, inter alia, ‘it lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of ‘elements,’ more than one combination of which could support a conviction.’”  Vasquez-Valle, 899 F.3d at 842 (citations omitted).

          “In applying the modified categorical approach, the evidence submitted by the government to prove a prior conviction in an immigration proceeding must meet a clear and convincing standard.”  Murillo-Prado, 735 F.3d at 1157.  See also  Quintero-Salazar v. Keisler, 506 F.3d 688, 694 (9th Cir. 2007) (“[T]he government has the burden to establish clearly and unequivocally the conviction was based on all of the elements of a qualifying predicate offense.” (internal quotation marks and citations omitted)).

          “[T]he modified categorical approach should only be applied to ‘determine which alternative element in a divisible statute formed the basis of the defendant’s conviction.’  The modified categorical approach ‘serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s conviction.’”  Aguilar-Turcios v. Holder, 740 F.3d 1294, 1300–02 (9th Cir. 2014) (quoting Descamps, 570 U.S. 254).

          The Supreme Court in Descamps, overruled this court’s holding in United States v. Aguila-Montes de Oca, 655 F.3d 915, 940 (9th Cir. 2011) (en banc), which held that the modified categorical approach applied to analysis of whether a prior conviction under a statute missing an element of the generic crime was a crime of violence.  After Descamps, the court “no longer analyzes a statute missing an element of a generic offense, …, under the modified categorical approach.”  United States v. Gomez, 757 F.3d 885, 889 (9th Cir. 2014).

          Under the modified categorical approach, “we look beyond the statutory text to a limited set of documents to determine which statutory phrase was the basis for the conviction.”  United States v. Martinez-Lopez, 864 F.3d 1034, 1043 (9th Cir.) (en banc) (internal quotation marks and citation omitted), cert. denied, ––– U.S. ––––, 138 S. Ct. 523, 199 L. Ed. 2d 400 (2017).  This narrow set of documents includes: “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”  Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005).

Vasquez-Valle v. Sessions, 899 F.3d 834, 843–44 (9th Cir. 2018) (considering indictment and plea agreement); see also Diego v. Sessions, 857 F.3d 1005, 1014 (9th Cir. 2017) (considering the indictment and the plea petition); Ramirez, 810 F.3d at 1131 (the court may “look beyond the elements of the statute to the documents of conviction, i.e., to the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment, to determine whether the petitioner was convicted of a set of elements that falls within the generic definition.” (internal quotation marks and citation omitted)); Rodriguez-Castellon, 733 F.3d 847, 853 (9th Cir. 2013) (Under the modified approach, we examine certain judicial records to determine whether the defendant was necessarily convicted of the elements of a crime listed in a divisible statute that is a federal generic offense.” (citing Shepard, 544 U.S. at 20 (2005))); Hoang v. Holder, 641 F.3d 1157, 1164–65 (9th Cir. 2011) (The court will “consider whether documentation or other judicially noticeable facts in the record indicate that [the petitioner] was convicted of the elements of the generically defined crime.”); Carlos-Blaza v. Holder, 611 F.3d 583, 589 (9th Cir. 2010).

          “The modified categorical approach is thus ‘a tool’ that allows us to apply the categorical approach..  Moreover, ‘[i]t retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime,’ as well as its ‘basic method.’” Ramirez, 810 F.3d at 1131–32 (quoting Descamps, 133 S. Ct. at 2285).  “The idea of the modified categorical approach is to determine if the record unequivocally establishes that the defendant was convicted of the generically defined crime, even if the statute defining the crime is overly inclusive.” United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4; see also Flores-Lopez, 685 F.3d at 862–65 (“Under the modified categorical approach, a court may review enumerated documents within the record to determine whether a petitioner’s plea ‘necessarily’ rested on the fact identifying the [offense] as generic.” (internal citation and quotation marks omitted)).

          Although the court will “look beyond the language of the statute to a narrow, specified set of documents that are part of the record of conviction,” it will not “look beyond the record of conviction itself to the particular facts underlying the conviction.”  Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004); see also Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir. 2002) (stating that the court will “conduct a limited examination of documents in the record to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime even though his or her statute of conviction was facially over-inclusive”).  If an alien’s admissions or concession leave material issues in dispute, the IJ may rely on facts admitted at the pleading stage, but may not consider further statements made by the alien unless they are contained in the specific set of documents that are part of the record of conviction. Pagayon v. Holder, 675 F.3d 1182, 1189 (9th Cir. 2011) (per curiam).  Note that the modified categorical approach “is concerned only with the crime of which the defendant was convicted, and not with his conduct.”  Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) (emphasis in original).

          There are two limitations on the application of the modified categorical approach: 1) the court may only rely on facts contained in a limited universe of judicial documents, such as the indictment or information and jury instructions, or if a guilty plea is at issue, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea; and 2) the court may only take into account the facts on which the defendant’s convictions necessarily rested.  See Sanchez-Avalos v. Holder, 693 F.3d 1011, 1015 (9th Cir. 2012), abrogated in part by Descamps v. United States, 570 U.S. 254 (2013).

          See also Myers v. Sessions, 904 F.3d 1101, 1111–12 (9th Cir. 2018) (concluding the Travel Act was divisible, applying the modified categorical approach, and considering the superseding information and plea agreement in determining the conviction was for a controlled substance offense); Rosales Rivera v. Lynch, 816 F.3d 1064, 1080 (9th Cir. 2016) (Cal. Penal Code § 118 is divisible into two separate offenses—written and oral perjury—and under the modified categorical approach, written perjury, which is Rosales Rivera’s crime of conviction, is not a crime involving moral turpitude); Padilla-Martinez v. Holder, 770 F.3d 825, 831–32 n.3 (9th Cir. 2014) (“A statute is divisible if it contains multiple, alternative elements of functionally separate crimes, and as to each alternative element, the jury must then find that element, unanimously and beyond a reasonable doubt.” (internal quotation marks and citation omitted)); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (“Because the statute of conviction identifies a number of controlled substances by referencing various [state] drug schedules and statutes and criminalizes the possession of any one, it is a divisible statute, and we may resort to the modified categorical approach to determine whether Ragasa’s crime of conviction is a removable offense.” (internal citation and quotation marks omitted)); Coronado v. Holder, 759 F.3d 977, 983 (9th Cir. 2014) (concluding that petitioner’s conviction was not a categorically removable offense and therefore modified categorical approach had to be applied); Carlos-Blaza, 611 F.3d at 590 (concluding that under the modified categorical approach a conviction for misapplication of funds under 18 U.S.C. § 656 necessarily involves fraud or deceit and therefore is an aggravated felony); Carrillo-Jaime v. Holder, 572 F.3d 747, 754 (9th Cir. 2009) (record was not sufficient to establish Cal. Veh. Code § 10801 conviction was an aggravated felony under modified categorical approach), overruled in part as stated in Lopez-Valencia v. Lynch, 798 F.3d 863, 872 n.6 (9th Cir. 2015).

1.       Charging Documents, Abstracts of Judgment, and Minute Orders

“[A] court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013); see also Vasquez-Valle v. Sessions, 899 F.3d 834, 843 (9th Cir. 2018) (explaining under the modified categorical approach, the court can look beyond the statutory text to a limited set of documents to determine which statutory phrase was the basis for the conviction, including the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.); Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016) ([W]e may look beyond the elements of the statute to the documents of conviction, i.e., to the state charging document, a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding and the judgment, to determine whether the petitioner was convicted of a set of elements that falls within the generic definition.”); United States v. Torre-Jimenez, 771 F.3d 1163, 1167 (9th Cir. 2014) (criminal complaint, abstract of judgment, and docket sheet were appropriate sources for review under the modified categorical approach); Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014) (reliance on the abstract of judgment in combination with a charging document is permitted under the modified categorical approach); Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014) (“Under the modified categorical approach, [the court] review[s] ‘a limited set of documents in the record of conviction: the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or the transcript from the plea proceedings’”); Coronado v. Holder, 759 F.3d 977, 986 (9th Cir. 2014) (“Where the minute order or other equally reliable document specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint.”); Murillo-Prado v. Holder, 735 F.3d 1152, 1156 (9th Cir. 2013) (per curiam) (the modified categorical approach permits courts to consider a limited class of documents, such as indictments and jury instructions); Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013) (same).  Documents such as the indictment, jury instructions, plea colloquy and plea agreement, are merely illustrative and documents of equal reliability may also be considered.  See Rosales Rivera v. Lynch, 816 F.3d 1064, 1078 (9th Cir. 2015); Coronado, 759 F.3d at 985; United States v. Leal-Vega, 680 F.3d 1160, 1168 (9th Cir. 2012).  See also United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc) (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)) (holding that district courts may rely on state court clerk’s minute orders that conform to certain procedures in applying the modified categorical approach), abrogated on other grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), abrogated in part by Moncrieffe v. Holder, 569 U.S. 184 (2013).

“In the context of a guilty plea, the modified categorical approach inquires whether a guilty plea to an offense defined by a nongeneric statute necessarily admitted elements of the generic offense.” Garcia v. Lynch, 786 F.3d 789, 795 (9th Cir. 2015) (quoting Alvarado v. Holder, 759 F.3d 1121, 1130 (9th Cir.2014) (internal quotation marks omitted)).

A rap sheet may form part of the record of conviction.  See Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1087–88 (9th Cir. 2017) (recognizing that a rap sheet may form part of the “record of conviction,” but concluding that under the circumstances of this case it was not sufficiently reliable to be considered under the modified categorical analysis).

          See also Myers v. Sessions, 904 F.3d 1101, 1111–12 (9th Cir. 2018) (concluding the Travel Act was divisible, applying the modified categorical approach, and considering the superseding information and plea agreement in determining the conviction was for a controlled substance offense); Garcia v. Lynch, 786 F.3d 789, 795 (9th Cir. 2015) (concluding that nothing in the conviction documents in the record—namely, the abstract of judgment and criminal complaint—established that Garcia’s conviction was for non-consensual grand theft); Kwong v. Holder, 671 F.3d 872, 879–80 (9th Cir. 2011) (discussing the sufficiency of abstract of judgment to establish conviction); Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir. 2010) (deferring “to the BIA’s reasonable conclusion that all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction” (internal quotation marks and citation omitted)); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003) (Under the modified categorical approach, the court may look to the “charging documents in combination with a signed plea agreement, jury instructions, guilty pleas, transcripts of a plea proceeding, and the judgment ... to document the elements of conviction.”).

          In United States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc), abrogated on other grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc), abrogated in part by Moncrieffe v. Holder, 569 U.S. 184 (2013), the court held that the district court could rely on the state court clerk’s minute order in determining whether a prior state burglary conviction qualified as a crime of violence.  Snellenberger, 548 F.3d at 702; see also Duenas-Alvarez, 733 F.3d at 815 (stating in Snellenberger, the court “held that we may look to documents such as the minute order or abstract of judgment when applying the modified categorical approach.”).  In Cabantac v. Holder, 736 F.3d 787, 790 (9th Cir. 2013) (as amended), the court held that where the abstract of judgment or minute order “specifies that a defendant pleaded guilty to a particular count of the criminal complaint or indictment” the court may consider the facts alleged in that count.  See id. (holding that the record was clear that the petitioner pleaded guilty to possession of a controlled substance that supported the order of removal).

Prior to Snellenberger, abstracts of judgment were found not sufficient to establish the nature of a defendant’s conviction.  See, e.g., United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (holding that a California abstract of judgment was not sufficient to establish unequivocally that defendant was convicted of the sale and transportation of methamphetamine), implied overruling by Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011); cf. United States v. Sandoval-Sandoval, 487 F.3d 1278, 1280 (9th Cir. 2007) (per curiam) (contrasting impermissible reliance on an abstract of judgment to determine the nature of a conviction with permissibly using it to determine “a discrete fact regarding Defendant’s prior conviction, namely, the length of sentence imposed”).  This court has stated that although Snellenberger did not explicitly overrule Navidad-Marcos, it is clear that its reasoning is inconsistent with that decision.  Kwong v. Holder, 671 F.3d 872, 879 (9th Cir. 2011) (discussing the sufficiency of abstract of judgment to establish conviction).

“When a plea agreement makes direct reference to a specific count in the charging document, the charging document ‘may be considered in combination with other documents in the record to determine whether [the petitioner] pled guilty to an aggravated felony.’”  Murillo-Prado, 735 F.3d at 1157. See also  United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1142 (9th Cir. 2014) (in non-immigration case, plea of guilty to second degree sexual assault was a document that court could consider under the modified categorical approach).

          “Charging papers alone are never sufficient” but “may be considered in combination with a signed plea agreement.”  United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc) (internal citation omitted), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4; see also Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014) (reliance on the abstract of judgment in combination with a charging document is permitted under the modified categorical approach); Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1152 (9th Cir. 2003).  Compare United States v. Savage, 488 F.3d 1232, 1236 (9th Cir. 2007) (applying the modified categorical approach “[b]ased on the charging document and the transcript of Savage’s plea allocution” to establish that he committed a crime of violence).  However, “the charging instrument … may not be considered when the original charges are dismissed and the defendant pleads guilty to a different offense.”  Alvarado v. Holder, 759 F.3d 1121, 1131 (9th Cir. 2014).

          “The set of noticeable documents includes the indictment (but only in conjunction with a signed plea agreement), the judgment of conviction, the minute order fully documenting the judgment, jury instructions, a signed guilty plea or the transcript from the plea proceedings.”  Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1035 (9th Cir. 2010) (where IJ relied solely on alien’s judicial admissions and an unidentified “conviction document” to determine that conviction was a controlled substance offense under the INA, the court held the government failed to meet its burden because the judicially noticeable documents in the record were inconclusive); see also Fregozo v. Holder, 576 F.3d 1030, 1033 n.1 (9th Cir. 2009) (explaining that neither the court nor the BIA could rely on police reports that were not incorporated by reference into the nolo plea or the record of conviction, to determine whether alien was convicted of a “crime of child abuse” within the meaning of the INA).

          “[T]he INA makes clear that ‘[o]fficial minutes of a court proceeding’ are sufficient ‘proof of a criminal conviction.’”  Retuta v. Holder, 591 F.3d 1181, 1184–85 (9th Cir. 2010) (quoting 8 U.S.C. § 1229a(c)(3)(B)(iv)).

          “When the modified categorical approach must be employed, an alien’s factual admissions may not be used as evidence to establish that he is removable, unless those admissions are included in the ‘narrow, specified set of documents that are part of the record of conviction,’ such as a plea agreement.”  Perez-Mejia v. Holder, 663 F.3d 403, 410 (9th Cir. 2011) (citations omitted).

2.       Police Reports and Stipulations

          The court may not “look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for,” a relevant offense.  Shepard v. United States, 544 U.S. 13, 16 (2005) (holding “that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented”); see also United States v. Almazan-Becerra, 482 F.3d 1085, 1090–91 (9th Cir. 2007) (remanding to determine whether, in light of Shepard, a police report stipulated to form the basis of a guilty plea could be used to support a sentencing enhancement).

          However, “[a]lthough police reports and complaint applications, standing alone, may not be used to enhance a sentence following a criminal conviction, the contents of these documents may be considered if specifically incorporated into the guilty plea or admitted by a defendant.”  Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005) (Certification for Determination of Probable Cause, incorporated by reference into guilty plea, demonstrated that conviction met the definition of sexual abuse of a minor) (internal citation omitted); see also Fregozo v. Holder, 576 F.3d 1030, 1033 n.1 (9th Cir. 2009) (explaining that neither the court nor the BIA could rely on police reports that were not incorporated by reference into the nolo plea or the record of conviction, to determine whether alien was convicted of a “crime of child abuse” within the meaning of the INA); United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006) (police report could be considered in determining whether prior conviction qualified as an aggravated felony because report was incorporated by reference into the charging document and stipulated to form the factual basis of a guilty plea), superseded by regulation; United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir. 2005) (defendant’s assent to the statement of facts in a motion to set aside the indictment or information under Cal. Penal Code § 995 was a proper basis for a sentencing court to engage in a modified categorical analysis).

3.       Probation or Presentence Reports

          In Corona-Sanchez, this court held that the defendant’s presentence report (“PSR”), which recited the facts of the crime as alleged in the charging papers, was not sufficient to establish that the defendant pled guilty to the elements of the generic definition of a crime.  United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002) (en banc), superseded on other grounds by U.S.S.G. § 2L1.2 cmt. n.4; see also United States v. Castillo-Marin, 684 F.3d 914, 919–20 (9th Cir. 2012) (plain error to rely on PSR to determine defendant had prior conviction for crime of violence); Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir. 2008); Abreu-Reyes v. INS, 350 F.3d 966, 967 (9th Cir. 2003) (order) (IJ may not use PSR to determine whether petitioner was an aggravated felon); Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1153–54 (9th Cir. 2003) (BIA erred in relying solely on the PSR to demonstrate the elements of a drug trafficking conviction); Hernandez-Martinez v. Ashcroft, 343 F.3d 1075, 1076–77 (9th Cir. 2003) (order); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 888 (9th Cir. 2003). Cf. United States v. Rodriguez-Guzman, 506 F.3d 738, 746–47 & n.9 (9th Cir. 2007) (stating that under Shepard’s modified categorical approach a sentencing hearing transcript is not judicially noticeable).

4.       Extra-Record Evidence

          Under the modified categorical approach, evidence outside the record of conviction may not be considered to determine whether a conviction is a predicate immigration offense.  See Cervantes v. Holder, 772 F.3d 583 (9th Cir. 2014) (“in this circuit, ‘an IJ is limited to the record of conviction in determining whether an alien has been ‘convicted of’ a CIMT.’” (citation omitted)); Olivas-Motta v. Holder, 746 F.3d 907, 908 (9th Cir. 2014) (holding that the agency is confined to the record of conviction in determining whether an alien has been convicted of a crime involving moral turpitude); Tokatly v. Ashcroft, 371 F.3d 613, 623–24 (9th Cir. 2004) (stating that “[w]e decline to modify this court’s – and the Board’s – strict rules against extra-record of conviction evidence in order to authorize use of an alien’s admissions in determining removability” and holding that IJ erred by relying on testimonial evidence at the removal hearing to determine that petitioner was convicted of a crime of domestic violence); Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1036 (9th Cir. 2010) (IJ’s reliance on alien’s admissions, coupled with the government attorney’s assessment that was based on a “rap sheet” that the IJ never looked at, was insufficient to conclude that the alien “had been convicted of possession for sale of a controlled substance that would constitute an aggravated felony under the INA.”); Cisneros-Perez v. Gonzales, 465 F.3d 386, 393 (9th Cir. 2006) (inferences and admissions during testimony before the IJ could not be used to determine whether petitioner was convicted of a crime of domestic violence); see also Taylor v. United States, 495 U.S. 575, 601 (1990) (noting the “practical difficulties and potential unfairness of a factual approach,” rather than a categorical approach, to a defendant’s prior offenses).

5.       Remand

          If the court determines that the record in a case does not support attaching immigration consequences to a particular crime of conviction under the modified categorical approach, the case will ordinarily not be remanded under INS v. Ventura, 537 U.S. 12 (2002) (per curiam), for the government to submit further documentation. See Flores-Lopez v. Holder, 685 F.3d 857, 865 (9th Cir. 2012); Fregozo v. Holder, 576 F.3d 1030, 1036 (9th Cir. 2009); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132–35 (9th Cir. 2006) (en banc); see also Ragasa v. Holder, 752 F.3d 1173, 1176 n.4 (9th Cir. 2014) (remanding to BIA to conduct modified categorical approach was not warranted). However, remand may be appropriate where it is unclear whether DHS had the opportunity to introduce all relevant evidence regarding the conviction in the proceedings below.  See Flores-Lopez, 685 F.3d at 865–67 (remanding for BIA to apply modified categorical approach in the first instance where the record of conviction may have been incomplete).

          See also Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1036 (9th Cir. 2010) (granting petition for review and reversing the order of removal); Retuta v. Holder, 591 F.3d 1181, 1190 (9th Cir. 2010) (“Because the Government presented no evidence sufficient to establish that Retuta was subject to removal, we grant the petition for review, reverse the order of removal, and remand to the Board for disposition consistent with this opinion”).

IV.    CATEGORIES OF CRIMINAL OFFENSES THAT CAN BE GROUNDS OF REMOVABILITY AND/OR INADMISSIBILITY

A.      Crimes Involving Moral Turpitude (“CIMT”)

1.       Removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)

a.       Single Crime Committed within Five Years of Admission

          An alien “convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and ... for which a sentence of one year or longer may be imposed, is deportable.”  8 U.S.C. § 1227(a)(2)(A)(i).  See also Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (“Section § 1227(a)(2)(A)(i)(I) provides that an alien convicted of a CIMT for which the potential punishment is one year or more is removable.”).

The “date of admission” for purposes of calculating the five years is the date of the alien’s lawful entry to the United States upon inspection and authorization by an immigration officer.  See Shivaraman v. Ashcroft, 360 F.3d 1142, 1148–49 (9th Cir. 2004).  The alien’s subsequent adjustment to lawful permanent resident status will not trigger the five-year provision if he or she continued to maintain lawful presence in the United States after an initial lawful entry.  See id. at 1149 (applicant was not removable because his CIMT was not committed within five years of his initial lawful admission). Where the alien enters the United States without inspection or admission, “[c]ertain events, such as adjustment to LPR status or acceptance into the Family Unity Program (FUP), qualify as ‘admission’ for immigration purposes.” United States v. Hernandez-Arias, 757 F.3d 874, 880 (9th Cir. 2014); see also Hernandez-Gonzalez v. Holder, 778 F.3d 793, 798 (9th Cir. 2015) (“Because Hernandez-Gonzalez entered the United States without inspection or admission, the date of his adjustment of status serves as a date of admission that triggers the five-year clock under 8 U.S.C. § 1227(a)(2)(A)(i)); Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134–35 (9th Cir. 2001) (applicant’s adjustment of status could constitute an “admission” for purposes of removability based on a conviction of an aggravated felony where he initially entered the United States without inspection).

b.      Multiple Offenses at Any Time

          Multiple convictions for moral turpitude offenses may subject an individual to removability.  See 8 U.S.C. § 1227(a)(2)(A)(ii).  “Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable.”  Id.; see also Coquico v. Lynch, 789 F.3d 1049, 1053–55 (9th Cir. 2015) (granting petition and remanding where one of the two crimes at issue, “unlawful laser activity” was not a crime involving moral turpitude, so as to subject petitioner to removal); Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) (“[A]n immigrant is removable if, after being admitted, he is convicted of two or more CIMTs that did not arise out of a single scheme of criminal misconduct.” (internal quotation marks, alteration, and citation omitted)).  For purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(ii), the government must prove that the crimes were not part of a single scheme of criminal misconduct.  See Ye v. INS, 214 F.3d 1128, 1134 n.5 (9th Cir. 2000) (rejecting argument that the court lacked jurisdiction, because INS did not show that the two counts of vehicle burglary arose out of different criminal schemes); Leon-Hernandez v. INS, 926 F.2d 902 (9th Cir. 1991) (conviction for two counts of oral copulation, one month apart, not part of a single scheme); Gonzalez-Sandoval v. INS, 910 F.2d 614 (9th Cir. 1990) (two robberies at same bank arose out of a single scheme).

          The BIA interpreted the phrase “single scheme of criminal misconduct” in Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992).  See Szonyi v. Whitaker, No. 15-73514, 2019 WL 573748, at *3 (9th Cir. Feb. 13, 2019).  In Adetiba, the BIA explained:

when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct.

20 I. & N. Dec. at 509; see also Szonyi, 2019 WL 573748, at *3 (quoting Adetiba). The BIA announced in Matter of Islam, 25 I. & N. Dec. 637, 641 (BIA 2011), that the Adetiba standard should be applied uniformly across all circuits. See Szonyi, 2019 WL 573748, at *3.  In Szonyi, deferring to the BIA’s interpretation, the court held that the BIA properly determined petitioner’s multiple crimes committed over a five to six hour period did not arise from a “single scheme of criminal misconduct, and thus he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii).  Szonyi, 2019 WL 573748, at *6–*8 (concluding the BIA properly applied its interpretation of “single scheme of conduct” and that application of the interpretation was not impermissibly retroactive).

2.       Inadmissibility Pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I)

          An alien convicted or who admits the essential elements of a crime involving moral turpitude (“CIMT”) is inadmissible.  See 8 U.S.C. § 1182(a)(2)(A)(i); see also Mtoched v. Lynch, 786 F.3d 1210, 1216 (9th Cir. 2015), cert. denied, 136 S. Ct. 837 (2016) (“Under 8 U.S.C. § 1182(a)(2)(A)(i)(I), an alien may be removed from the United States if convicted of a CIMT.”).

          An alien with one CIMT is not inadmissible if he or she meets the petty offense exception.  See 8 U.S.C. § 1182(a)(2)(A)(ii).  A CIMT will meet the petty offense exception if “‘the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and ... the alien was not sentenced to a term of imprisonment in excess of 6 months.’”  Lafarga v. INS, 170 F.3d 1213, 1214–15 (9th Cir. 1999) (quoting 8 U.S.C. § 1182(a)(2)(A)(ii)(II)); see also Castillo-Cruz v. Holder, 581 F.3d 1154, 1161–62 (9th Cir. 2009) (“[S]ingle conviction for a crime of moral turpitude – petty theft – may fall within the petty offenses exception set forth at 8 U.S.C. § 1182(a)(2)(A)(ii)(II)”).  For the purpose of the petty offense exception, “‘the maximum penalty possible’ ... refers to the statutory maximum sentence, not the guideline sentence to which the alien is exposed.”  Mendez-Mendez v. Mukasey, 525 F.3d 828, 835 (9th Cir. 2008) (offense of bribery of a public official did not qualify for petty offense exception where statutory maximum for offense was 15 years).  Additionally, this court has deferred to the BIA’s reasonable approach of considering the sentence that could have been imposed, not the actual sentence.  See Mancilla-Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir. 2015) (citing Matter of Cortez, 25 I. & N. Dec. 301, 307 (BIA 2010)).

          The youthful offender exception will apply if:

the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or


 

other documentation and the date of application for admission to the United States.

8 U.S.C. § 1182(a)(2)(A)(ii)(I).

3.       Definition of Crime Involving Moral Turpitude

          “[T]he BIA must consider on a case-by-case basis whether a particular crime involves moral turpitude.”  Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011). “[I]mmigration statutes do not specifically define offenses constituting crimes involving moral turpitude[.]”  Hernandez-Gonzalez v. Holder, 778 F.3d 793, 801 (9th Cir. 2015) (internal quotation marks and citations omitted); see also Ceron v. Holder, 747 F.3d 773, 779–80 (9th Cir. 2014) (en banc) (same); Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (same).

“[T]he federal generic definition of a CIMT is a crime involving fraud or conduct that 1) is vile, base, or depraved and 2) violates accepted moral standards.”  Saavedra–Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010) (citation omitted); see also Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th Cir. 2012) (CIMTs are generally defined as crimes that are “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”) (citations omitted).  “[F]raud crimes are categorically crimes involving moral turpitude, simply by virtue of their fraudulent nature.” Planes v. Holder, 652 F.3d 991, 997 (9th Cir. 2011).  “Non-fraudulent CIMTs ‘almost always involve an intent to harm someone,’”  Saavedra-Figueroa, 625 F.3d at 626 (quoting Nunez v. Holder, 594 F.3d 1124, 1131 & n. 4 (9th Cir. 2010)), or “intent to injure, actual injury, or a protected class of victim,” Turijan v. Holder, 744 F.3d 617, 619 (9th Cir. 2014) (citation omitted).  In determining whether an offense is a CIMT, the BIA has examined “whether the act is accompanied by a vicious motive or a corrupt mind” because “evil or malicious intent is ... the essence of moral turpitude.” Latter-Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (citations omitted).

Linares-Gonzalez v. Lynch, 823 F.3d 508, 514 (9th Cir. 2016).  Not every offense that runs against ‘accepted rules of social conduct’ will qualify as a CIMT, however.  Robles-Urrea[, 678 F.3d at 708.]  Rather, ‘[o]nly truly unconscionable conduct surpasses the threshold of moral turpitude.’  Id.  Turijan, 744 F.3d at 621 (holding “felony false imprisonment under California law does not qualify as a categorical CIMT”).

          The phrase “crime involving moral turpitude” is not unconstitutionally vague.  See Islas-Veloz v. Whitaker, No. 15-73120, 2019 WL 419184, at *1–*2 (9th Cir. Feb. 4, 2019); Martinez-de Ryan v. Whitaker, 909 F.3d 247, 252 (9th Cir. 2018).

          “Almost every Term, the Supreme Court issues a ‘new’ decision with slightly different language that forces federal judges, litigants, lawyers and probation officers to hit the reset button once again” in determining whether a crime is a CIMT.  Almanza-Arenas v. Lynch, 815 F.3d 469, 483 (9th Cir. 2015) (en banc) (Owens, J., concurring); see also Conejo-Bravo v. Sessions, 875 F.3d 890, 893 (9th Cir. 2017) (quoting Alamanza-Arenas and noting that the current approach to CIMTs and crimes of violence can lead to unpredictable results).

See also Menendez v. Whitaker, 908 F.3d 467, 472–73 (9th Cir. 2018) (recognizing the meaning of the term “crime involving moral turpitude” falls well short of clarity, and explaining that although the court has not articulated a consistent or easily applied set of criteria to determine whether a state offense is a CIMT, past precedents provide a few guideposts); Vasquez-Valle v. Sessions, 899 F.3d 834, 839 (9th Cir. 2018) (“There are two categories of CIMTs: those involving fraud and those involving grave acts of baseness or depravity.” (internal quotation marks and citation omitted)); Conejo-Bravo v. Sessions, 875 F.3d 890, 892-93 (9th Cir. 2017) (concluding that conviction under California Vehicle Code § 20001(a) for felony hit and run qualified as a CIMT); Mtoched v. Lynch, 786 F.3d 1210, 1216 (9th Cir. 2015) (“‘[T]he federal generic definition of a CIMT is a crime involving fraud or conduct that (1) is vile, base, or depraved and (2) violates accepted moral standards.  Non-fraudulent CIMTs almost always involve an intent to harm someone. Saavedra–Figueroa v. Holder, 625 F.3d 621, 626 (9th Cir. 2010) (internal quotation marks and citations omitted).”); Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1267 (9th Cir. 2013) (‘[T]he essence of moral turpitude’ is an ‘evil or malicious intent.’” (quoting Latter-Singh, 668 F.3d at 1161)); Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014) (“[T]he creation of a substantial, actual risk of imminent death is sufficiently reprehensible, or in terms of our case law “base, vile, and depraved,” to establish a CIMT, even though no actual harm need occur.”); Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir. 2014) (“Misuse of a passport to facilitate an act of international terrorism is categorically a crime involving moral turpitude.”); Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014) (crimes of moral turpitude generally involve base, vile and depraved conduct that shocks the public conscience); Castrijon-Garcia v. Holder, 704 F.3d 1205, 1213 (9th Cir. 2013) (“Crimes of moral turpitude generally involve some evil intent.” (quotation marks and citation omitted)); Robles-Urrea v. Holder, 678 F.3d 702, 707–11 (9th Cir. 2012) (concluding BIA erred in determining that misprision of felony was categorically a CIMT); Blanco v. Mukasey, 518 F.3d 714, 718 (9th Cir. 2008) (holding that crime of false identification to a peace officer is not categorically a CIMT).

          The court has noted that it is often helpful to determine whether a state crime involves moral turpitude by comparing it with crimes that have previously been found to involve moral turpitude.  Rohit v. Holder, 670 F.3d 1085, 1089 (9th Cir. 2012).

          “When the only benefit the individual obtains is to impede the enforcement of the law, the crime does not involve moral turpitude.”  See Latu v. Mukasey, 547 F.3d 1070, 1074 (9th Cir. 2008) (quotation marks omitted) (concluding that violation of Hawaii Revised Statute § 291C-12.5(a), which requires the a driver to give an address or vehicle registration number following an accident resulting in substantial bodily injury, was not a CIMT).

          “Crimes involving fraud are considered to be crimes involving moral turpitude.”  Tijani v. Holder, 628 F.3d 1071, 1075–79 (9th Cir. 2010) (internal quotation marks and citation omitted) (conviction for using false statements to obtain credit cards in violation of California law were inherently fraudulent).  See also Ibarra-Hernandez v. Holder, 770 F.3d 1280, 1281–82 (9th Cir. 2014) (per curiam) (under modified categorical approach, violation of Arizona Revised Statutes § 13-2008(A) was a CIMT because stealing a real person’s identity for the purpose of obtaining employment is inherently fraudulent); Espino-Castillo v. Holder, 770 F.3d 861, 864 (9th Cir. 2014) (Arizona’s conviction for forgery was a crime involving moral turpitude); Hernandez de Martinez v. Holder, 770 F.3d 823 (9th Cir. 2014) (per curiam) (conviction for crimination impersonation by assuming a false identity with intent to defraud is categorically a CIMT); Planes v. Holder, 652 F.3d 991 (9th Cir. 2011) (“crimes that have fraud as an element, …, are categorically crimes involving moral turpitude).  See, e.g., Rashtabadi v. INS, 23 F.3d 1562, 1568 (9th Cir. 1994) (California conviction for grand theft is a CIMT); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (per curiam) (conspiracy to affect the market price of stock by deceit with intent to defraud is a CIMT); Winestock v. INS, 576 F.2d 234, 235 (9th Cir. 1978) (dealing in counterfeit obligations is a CIMT); see also United States v. Esparza-Ponce, 193 F.3d 1133, 1136–37 (9th Cir. 1999) (stating in illegal reentry case that petty theft constitutes a CIMT); Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017–20 (9th Cir. 2005) (burglary convictions under Wash. Rev. Code §§ 9A.52.025(1) and 9A.08.020(3) do not categorically meet the definition of CIMT, but do meet the definition under the modified categorical approach because petitioner intended to steal property, a fraud crime), abrogated on other grounds by Holder v. Martinez Guetierrez, 132 S. Ct. 2011 (2012).

          Crimes against property that do not involve fraud are generally not considered CIMT’s.  See Rodriguez-Herrera v. INS, 52 F.3d 238, 240 n.5 (9th Cir. 1995) (crime of malicious mischief was not CIMT).

          Strict liability offenses and crimes against the state are generally not CIMT’s.  See Quintero-Salazar v. Keisler, 506 F.3d 688, 693 (9th Cir. 2007) (statutory rape under California Penal Code § 261.5(d) is not a categorical CIMT because statute proscribes some conduct that is malum prohibitum rather than malum in se); Beltran-Tirado v. INS, 213 F.3d 1179, 1184 (9th Cir. 2000) (noting difference between malum prohibitum, an act only statutorily prohibited, and malum in se, an act inherently wrong); see also Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir. 2005) (concluding that a conviction for attempted entry of goods by means of a false statement was not a CIMT); Hernandez-Martinez v. Ashcroft, 329 F.3d 1117, 1118–19 (9th Cir. 2003) (Arizona aggravated driving under the influence is not a categorical CIMT where person may be convicted without actually driving); Murillo-Salmeron v. INS, 327 F.3d 898, 902 (9th Cir. 2003) (simple DUI convictions are not CIMT’s); Beltran-Tirado, 213 F.3d at 1183–84 (convictions for making a false attestation on an employment verification form and using a false Social Security number do not constitute CIMT’s); United States v. Chu Kong Yin, 935 F.2d 990, 1003–04 (9th Cir. 1991) (gambling crimes did not necessarily involve moral turpitude).  But see Marmolejo-Campos v. Holder, 558 F.3d 903, 917 (9th Cir. 2009) (en banc) (concluding that DUI offenses committed with the knowledge that one’s driver’s license has been suspended or otherwise restricted are crimes involving moral turpitude).

          A bribery conviction under 18 U.S.C. § 666(a)(2) categorically qualifies as a crime involving moral turpitude, because it requires proof of a “corrupt mind.”  Martinez-de Ryan v. Whitaker, 909 F.3d 247, 250 (9th Cir. 2018) (stating that the court’s holding comports with “decades-old decisions by the BIA and by the Second, Fourth, and Fifth Circuits that bribery involves moral turpitude”).

          A witness tampering conviction in violation of Oregon Revised Statutes § 162.285 is overbroad, and not categorically a CIMT because the minimum conduct it criminalizes is not necessarily fraudulent, base, vile, or depraved. Vasquez-Valle v. Sessions, 899 F.3d 834, 840 (9th Cir. 2018) (concluding statute was divisible, applying modified categorical approach, and determining that petitioners conviction was not a CIMT).  See also Escobar v. Lynch, 846 F.3d 1019, (9th Cir. 2017) (holding that witness tampering in violation of Cal. Penal Code § 136.1(a) was not categorically a crime of moral turpitude, and remanding for the agency to consider if the statute was divisible and if so to conduct the modified categorical analysis).

          Simple battery is generally not a CIMT, although it may be rendered such by aggravating circumstances.  See Morales-Garcia v. Holder, 567 F.3d 1058, 1067 (9th Cir. 2009) (concluding that conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant was not categorically a CIMT); Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1167 (9th Cir. 2006) (Arizona domestic assault statute is not categorical CIMT because it penalizes reckless conduct); Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006) (California conviction for domestic battery under Cal. Penal Code § 243(e) is not a categorical CIMT because it lacks an injury requirement and includes no inherent element evidencing grave acts of baseness or depravity); but see Grageda v. INS, 12 F.3d 919 (9th Cir. 1993) (willful infliction of injury to a spouse is CIMT), superseded by statute on other grounds as stated in Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011).

          Sex-related offenses (other than statutory rape) are generally considered to be CIMT’s.  See Rohit v. Holder, 670 F.3d 1085, 1089–90 (9th Cir. 2012) (conviction for solicitation of prostitution); Gonzalez-Alvarado v. INS, 39 F.3d 245, 246 (9th Cir. 1994) (“Incest ... involves an act of baseness or depravity contrary to accepted moral standards, and we hold that it too is a ‘crime involving moral turpitude.’”); see also Zavaleta-Gallegos v. INS, 261 F.3d 951 (9th Cir. 2001) (alien did not challenge that conviction for stalking was a CIMT).  But see Nicanor-Romero v. Mukasey, 523 F.3d 992, 997–1008 (9th Cir. 2008) (conviction under Cal. Penal Code § 647.6(a) for annoying or molesting a child under the age of 18 was not categorically a CIMT), overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc).  “In the context of sexual offenses, whether the crime involves moral turpitude turns on whether there is (1) actual harm or (2) a protected class of victim.”  Gonzalez-Cervantes, 709 F.3d at 1267 (concluding that California conviction for misdemeanor sexual battery involved moral turpitude).

          In Menendez v. Whitaker, 908 F.3d 467, 472–74 (9th Cir. 2018), the court held that a conviction for lewd or lascivious conduct in violation of Cal. Penal Code § 288(c)(1) is not categorically a crime involving moral turpitude.  The court stated that although § 288(c)(1) involves a protected class of persons (minors aged 14 or 15), not all criminal statutes intended to protect minors involve moral turpitude.  Menendez, 908 F.3d at 473.

          “[I]ndecent exposure to a person under the age of fourteen pursuant to Wash. Rev. Code § 9A.88.010(2)(b) is not categorically a crime involving moral turpitude.”  Barrera-Lima v. Sessions, 901 F.3d 1108, 1123 (9th Cir. 2018) (further concluding that Wash. Rev. Code § 9A.88.010(2)(b) is indivisible and that the modified categorical approach is inapplicable).  The court in Barrera-Lima stated, “Other indecent exposure statutes aimed at protecting a class of victims, such as children, may categorically qualify as crimes involving moral turpitude because they include any number of the elements missing from Wash. Rev. Code §  9A.88.010(2)(b)—sexual motivation, actual observation, or specific intent—but we are not called upon to assess those statutes.”  Barrera-Lima, 901 F.3d at 1123.  See also Nunez v. Holder, 594 F.3d 1124, 1138 (9th Cir. 2010) (concluding that “indecent exposure as defined by Cal. Penal Code § 314, and as construed by California courts, is not categorically a crime of moral turpitude”).

Knowing possession of child pornography is a CIMT.  See also United States v. Santacruz, 563 F.3d 894, 897 (9th Cir. 2009).

Communication with a minor for immoral purposes in violation of Revised Code of Washington § 9.68A.090 is a crime of moral turpitude.  See Islas-Veloz v. Whitaker, No. 15-73120, 2019 WL 419184, at *2 (9th Cir. Feb. 4, 2019); see also Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007), abrogated on other grounds in Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th Cir. 2010).

          Solicitation to possess a large quantity of marijuana is a CIMT. See Barragan-Lopez v. Mukasey, 508 F.3d 899, 904 (9th Cir. 2007).

          Misdemeanor false imprisonment under Cal. Penal Code § 236 is not categorically a CIMT because it “does not require the defendant to have had the intent to harm necessary for the crime to be ‘base, vile, or depraved.’” Saavedra-Figueroa, 625 F.3d at 626.  Similarly, “[s]imple kidnapping under [Cal. Penal Code § 207(a) also] does not require an intent to injury, actual injury, or a special class of victims.”  Castrijon-Garcia v. Holder, 704 F.3d 1205, 1213 (9th Cir. 2013).  As such, simple kidnapping is not categorically a CIMT.  Id. at 1214 (explaining that the court has held that “non-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim” and holding that simple kidnapping under Cal. Penal Code § 207(a) is not categorically a crime of moral turpitude).

          Crime of making threats with intent to terrorize under Cal. Penal Code § 422 is categorically a CIMT.  Latter-Singh v. Holder, 668 F.3d 1156, 1161–63 (9th Cir. 2012); cf. Coquico v. Lynch, 789 F.3d 1049, 1055 (9th Cir. 2015) (discussing Latter-Singh, and concluding that a violation of Cal. Penal Code § 417.26, unlawful laser activity, is not categorically a crime involving moral turpitude).  Also, in Cervantes v. Holder, 772 F.3d 583 (9th Cir. 2014), the court held that a conviction under California Penal Code § 422 for threatening to commit a crime resulting in death or great bodily injury categorically was a CIMT.  Id. at 589.

          This court held in Hernandez-Gonzalez v. Holder, 778 F.3d 793, 809 (9th Cir. 2015) that the gang sentencing enhancement under California law did not categorically elevate the petitioner’s conviction for unlawful possession of a weapon to a crime involving moral turpitude.

          A robbery conviction under Cal. Penal Code § 211 is a CIMT for the purposes of 8 U.S.C. § 1182(a)(2)(A)(i)(I).  See Mendoza v. Holder, 623 F.3d 1299, 1303–04 (9th Cir. 2010).

          “Petty theft is a crime involving moral turpitude under 8 U.S.C. § 1182(a)(2)(A)(i)(I)[,]”  Flores Juarez v. Mukasey, 530 F.3d 1020, 1022 (9th Cir. 2008) (per curiam), as is a conviction for credit card fraud in violation of Cal. Penal Code § 532a(1), see Tijani, 628 F.3d at 1075–77 (conviction for using false statements to obtain credit cards in violation of California law were inherently fraudulent).  However, a conviction for receipt of stolen property under Cal. Penal Code § 496 is not categorically a CIMT.  See Castillo-Cruz v. Holder, 581 F.3d 1154, 1161 (9th Cir. 2009).  Likewise, the court held Lozano-Arredondo v. Sessions, 866 F.3d 1082, 1093 (9th Cir. 2017), “that petit theft under Idaho law does not qualify categorically as a crime involving moral turpitude.”  Id. (also holding that under the modified categorical approach, the record of conviction was inconclusive, and remanding so the burden of proof question could be resolved, and for the BIA to determine whether Lozano-Arredondo’s conviction qualifies as a crime involving moral turpitude under the modified categorical approach).

          Cal. Vehicle Code § 10851(a), which criminalizes theft and unlawful driving or taking of a vehicle is not categorically a CIMT.  Almanza-Arenas v. Lynch, 815 F.3d 469, 476 (9th Cir. 2016) (en banc) (as amended).  Likewise, “California’s Vehicle Code § 2800.2 is not categorically a crime of moral turpitude.”  Ramirez-Contreras v. Sessions, 858 F.3d 1298, 1307 (9th Cir. 2017).

          Prior to the BIA’s decision in In re Diaz-Lizarraga, 26 I. & N. Dec. 847, 849 (BIA 2016), the BIA had held that “a theft offense categorically involves moral turpitude if—and only if—it is committed with the intent to permanently deprive an owner of property.”  Garcia-Martinez v. Sessions, 886 F.3d 1291, 1294 (9th Cir. 2018) (citation omitted).  However, as explained in Garcia-Martinez, the BIA changed the law in Diaz-Lizarraga, holding that “a theft offense is a crime involving moral turpitude if it involves an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded[,]” and overruling any prior decisions that required literal intent to permanently deprive an owner of property.  Garcia-Martinez, 886 F.3d at 1294 (explaining change of law in Diaz-Lizarraga).  The court in Garcia-Martinez held that the new rule expanding the CIMT definition of a theft offense, should not be applied retroactively to petitioner.  886 F.3d at 1294–96 (balancing of interests and basic fairness, indicated the BIA’s new CIMT rule should not be applied to petitioner, where petitioner’s theft offenses in Oregon were not CIMTs at the time petitioner committed them).

          See also Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (prior conviction in Canada for aggravated assault did not categorically qualify as CIMT); Blanco, 518 F.3d at 718–20 (holding that crime of false identification to a peace officer under Cal. Penal Code § 148.9(a) was not categorically a CIMT); Cerezo v. Mukasey, 512 F.3d 1163, 1166–69 (9th Cir. 2008) (concluding that California conviction for leaving the scene of an accident resulting in bodily injury or death in violation of Cal. Vehicle Code § 20001(a) was not categorically a CIMT).

B.      Controlled Substances Offenses

1.       Deportation Ground – 8 U.S.C. § 1227(a)(2)(B)(i)

          Aliens may be removable for drug offenses.  See 8 U.S.C. § 1227(a)(2)(B)(i).  See also Ruiz-Vidal v. Lynch, 803 F.3d 1049, 1052 (9th Cir. 2015) (“An alien is removable if the government proves by clear and convincing evidence that he’s been convicted of certain offenses “relating to a controlled substance” covered by the Controlled Substances Act.”)  This section is broader than the aggravated felony deportation ground since it relates to all controlled substance offenses rather than just illicit trafficking offenses.  Compare 8 U.S.C. § 1227(a)(2)(B)(i) with 8 U.S.C. § 1101(a)(43)(B).  8 U.S.C. § 1227(a)(2)(B)(i) provides:

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

See also Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (as amended) (“In other words, (1) any alien (2) convicted of a conspiracy under state law (3) relating to a controlled substance as defined under 21 U.S.C. § 802, is deportable.”); Medina v. Ashcroft, 393 F.3d 1063, 1065 (9th Cir. 2005) (Nevada conviction of attempting to be under the influence of THC-carboxylic acid, a controlled substance, was not a removable offense because it came within the statutory exception for possession of 30 grams or less of marijuana).

“[C]onstruction of § 1227(a)(2)(B)(i) must be faithful to the text, which limits the meaning of ‘controlled substance,’ for removal purposes, to the substances controlled under § 802.”  Mellouli v. Lynch, 135 S. Ct. 1980, 1990–91 (2015).  The Supreme Court rejected “the argument that any drug offense renders an alien removable, without regard to the appearance of the drug on a § 802 schedule.  Instead, to trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§ 802].” Id. at 1991.

The operative statutory phrase, ‘relating to a controlled substance,’ modifies ‘law or regulation.’  The ordinary meaning of the term ‘relate’ is ‘to show or establish a logical or causal connection between.’  Thus, [the court] look[s] to the language of the statute of conviction to determine whether it establishes a logical or causal connection to a controlled substance as defined in 21 U.S.C.
§ 802, section 102 of the Controlled Substances Act [].

Mielewczyk v. Holder, 575 F.3d 992, 994–95 (9th Cir. 2009) (internal citations omitted); see also Mellouli, 135 S. Ct. at 1990 (“The removal provision is thus satisfied when the elements that make up the state crime of conviction relate to a federally controlled substance.”); Villavicencio, 904 F.3d at 665.

          “[S]ection 1227(a)(2)(B)(i) exempts from removability solely those aliens who have (1) committed only one controlled substance offense, where (2) that offense is possession for personal use of less than 30 grams of marijuana.” Rodriguez v. Holder, 619 F.3d 1077, 1079 (9th Cir. 2010) (per curiam) (discussing “personal use exception” of § 1227(a)(2)(B)(i) and holding that it does not apply to aliens who have more than one drug conviction). see also Medina, 393 F.3d at 1065 (Nevada conviction of attempting to be under the influence of THC-carboxylic acid, a controlled substance, was not a removable offense because it came within the statutory exception for possession of 30 grams or less of marijuana).

          See also Villavicencio, 904 F.3d at 667 (concluding that petitioner was not removable under 8 U.S.C. § 1227(a)(2)(B)(i) and that N.R.S. §§ 199.480 and 454.351 are overbroad and indivisible, and cannot be used as a predicate offense to support removal); Ruiz-Vidal, 803 F.3d at 1055 (“Because there is clear and convincing evidence in the documents permissible for review that Ruiz-Vidal pleaded to—and was convicted of—possession of methamphetamine, a controlled substance, he is removable.”); Padilla-Martinez v. Holder, 770 F.3d 825, 831–32 n.3 (9th Cir. 2014) (conviction under Cal. Health & Safety Code § 11378 is an aggravated felony under modified categorical approach); Alvarado v. Holder, 759 F.3d 1121 (9th Cir. 2014) (conviction for attempted possession of dangerous drug constituted a violation of state law relating to a controlled substance); Cabantac v. Holder, 736 F.3d 787, 790 (9th Cir. 2013) (as amended) (conviction under Cal. Health & Safety Code § 11377(a) for possession of a controlled substance supported order of removal); Pagayon v. Holder, 675 F.3d 1182, 1189–90 (9th Cir. 2011) (per curiam) (state conviction for possessing methamphetamine constituted a controlled substance offense rendering alien removable, where petitioner made a pleading-stage admission to the conviction); Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010) (explaining that a conviction under Cal. Health & Safety Code § 11379 does not necessarily entail a “controlled substance offense” under 8 U.S.C. § 1227 (a)(2)(B)(i)); Retuta v. Holder, 591 F.3d 1181, 1185–89 (9th Cir. 2010) (minute order sufficient to show alien pled guilty to charge of possession of a controlled substance, methamphetamine, in violation of Cal. Health & Safety Code § 11377(a), but government failed to prove alien was “convicted” because “the definition of ‘conviction’ does not include criminal judgments whose only consequence is a suspended non-incarceratory sanction”).

          In the removal context, the government bears the burden of proving that the substance underlying an alien’s state law conviction is one covered by § 802 of the Controlled Substances Act (“CSA”).  See Ragasa v. Holder, 752 F.3d 1173, 1175 (9th Cir. 2014); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076–77 (9th Cir. 2007) (conviction under California possession statute was not a categorical controlled substance offense because California regulates the possession and sale of many substances not covered by the CSA), abrogated on other grounds by Kwong v. Holder, 671 F.3d 872 (9th Cir. 2011).  The government also must demonstrate that the conviction is one “relating to a controlled substance,” although this requirement has been construed broadly.  See, e.g., Johnson v. INS, 971 F.2d 340, 342–43 (9th Cir. 1992) (conviction for violation of the Travel Act, 18 U.S.C. § 1952, was a violation of a law relating to a controlled substance); but see Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1153 (9th Cir. 2003) (as amended) (Arizona money laundering offense is not a crime relating to a controlled substance); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona solicitation conviction is not a violation of a law relating to a controlled substance, and is therefore not a deportable offense).

2.       Inadmissibility Grounds – 8 U.S.C. § 1182(a)(2)(A)(i)(II) & 8 U.S.C. § 1182(a)(2)(C)

Additional grounds of inadmissibility bar the admission of aliens who are convicted of or admit the essential elements of a crime related to a controlled substance or who are controlled substance traffickers.  See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (controlled substance crime), § 1182(a)(2)(C) (controlled substance traffickers); see also Coronado v. Holder, 759 F.3d 977, 982 (9th Cir. 2014); Hernandez-Aguilar v. Holder, 594 F.3d 1069, 1073 (9th Cir. 2010) (holding “that a conviction under § 11379(a), irrespective of whether the underlying offense was solicitation, qualifies for removal under § 1182(a)(2)(A)(i)(II), so long as the substance involved in the conviction is determined to have been a controlled substance under the modified categorical approach.”).  An alien inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) may be granted a waiver of inadmissibility if his conviction was for simple possession of 30 grams or less of marijuana and he can establish that denial of his admission would result in extreme hardship to his United States citizen or lawful permanent resident spouse, parent, son or daughter.  See 8 U.S.C. § 1182(h).

V.      CATEGORIES OF CRIMINAL OFFENSES THAT ARE GROUNDS OF REMOVABILITY ONLY

A.      Aggravated Felony

Several dozen offenses are categorized as aggravated felonies under 8 U.S.C. § 1101(a)(43). Each crime enumerated in 8 U.S.C. § 1101(a)(43)is an aggravated felony irrespective of whether it violates federal, state, or foreign law.  Torres v. Lynch, 136 S. Ct. 1619, 1626–27 (2016).  See also Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018) (“The INA defines ‘aggravated felony’ by listing numerous offenses and types of offenses, often with cross-references to federal criminal statutes.”)

          An applicant is removable if convicted of an aggravated felony at any time after admission.  See Torres, 136 S. Ct. at 1622 (an alien convicted of an aggravated felony after entering the United States is deportable, ineligible for certain discretionary relief, and subject to expedited removal); see also Lopez v. Sessions, 901 F.3d 1071, 1074 (9th Cir. 2018) (“Any alien who is ‘convicted of an aggravated felony at any time after admission is deportable.’” (quoting 8 U.S.C. § 1227(a)(2)(A)(iii)); Sales v. Sessions, 868 F.3d 779, 784 (9th Cir. 2017) (“Sales’ 1995 conviction of second degree murder as an aider and abettor was an aggravated felony for purposes of the removal proceedings.”); Habibi v. Holder, 673 F.3d 1082, 1085 (9th Cir. 2011) (“Under 8 U.S.C. § 1229b(a)(3), an LPR convicted of an ‘aggravated felony’ is ineligible for cancellation of removal. ‘Aggravated felony’ is defined by 8 U.S.C. § 1101(a)(43)(F) as including a ‘crime of violence ... for which the term of imprisonment [is] at least one year.’”); Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010) (“‘Any alien who is convicted of an aggravated felony at any time after admission is deportable.’” (quoting 8 U.S.C. § 1227(a)(2)(A)); Hernandez-Cruz v. Holder, 651 F.3d 1094 (9th Cir. 2011) (“An immigrant convicted of an aggravated felony after being admitted to this country is removable.”); Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134 (9th Cir. 2001).  Aggravated felons are also disqualified from many forms of relief including asylum, voluntary departure, and cancellation of removal (although some aliens may remain eligible for § 212(c) relief).  See Torres, 136 S. Ct. at 1622.  Additionally, “[a] person who has been convicted of an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43), is permanently ineligible for naturalization.” Elmakhzoumi v. Sessions, 883 F.3d 1170, 1172 (9th Cir. 2018).  Although an alien previously removed for having been convicted of an aggravated felony is permanently inadmissible under 8 U.S.C. § 1182(a)(9)(A)(i), absent consent of the Attorney General, there is no independent ground of inadmissibility for having been convicted of an aggravated felony.

          The aggravated felony provisions in the INA were first introduced by the Anti-Drug Abuse Act of 1988 and included murder, drug trafficking, arms trafficking, and any attempt or conspiracy to commit such acts. See Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 915–16 (9th Cir. 2004).  Subsequent legislation expanded the definition incrementally, until § 321 of IIRIRA added new offenses to the definition and dramatically broadened the definition’s reach by expanding the terms of many offenses.  See, e.g., INS v. St. Cyr, 533 U.S. 289, 296 n.4 (2001); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1044–45 & n.3 (9th Cir. 2004); United States v. Velasco-Medina, 305 F.3d 839, 843 (9th Cir. 2002). 8 U.S.C. § 1227(a)(2)(A)(iii) does not apply to convictions that occurred prior to enactment of the Anti-Drug Abuse Act of 1988.  Reyes-Torres v. Holder, 645 F.3d 1073, 1077 (9th Cir. 2011); Ledezma-Galicia v. Holder, 636 F.3d 1059, 1080 (9th Cir. 2010).

          The expanded definition of aggravated felony applies to all “actions taken” by the Attorney General on or after September 30, 1996, regardless of the date of conviction.  See IIRIRA § 321(b) and (c); Aragon-Ayon v. INS, 206 F.3d 847, 852 (9th Cir. 2000) (citing Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir. 1997)). The Ninth Circuit court has upheld the retroactive application of IIRIRA’s expanded definition of aggravated felony.  See Aragon-Ayon, 206 F.3d at 853; see also Becker v. Gonzales, 473 F.3d 1000, 1002 (9th Cir. 2007); Lopez-Castellanos v. Gonzales, 437 F.3d 848, 852 (9th Cir. 2006); Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1054 (9th Cir. 2005).

“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a “categorical approach” to determine whether the state offense is comparable to an offense listed in the INA.”  Moncrieffe v. Holder, 569 U.S. 184, 190 (2013).  The reason is that the INA asks what offense the noncitizen was “convicted” of, 8 U.S.C. § 1227(a)(2)(A)(iii), not what acts he committed.  “[C]onviction” is the relevant statutory hook.”  Id. at 191.  A state offense will count as a § 1101(a)(43) aggravated felony even if it lacks an interstate commerce element, but corresponds to a federal offense in all other ways.  Torres, 136 S. Ct. at 1622 (“[T]he absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony.”).

Note the Ninth Circuit found in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015)